The regulations in this subtitle contain requirements applicable to all surface mining of coal in the State, and the surface effects of deep mining of coal. The regulations are promulgated in accordance with the Maryland Strip Mining Program pursuant to the Federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87). Regulations become effective on the date of approval of the Maryland program by the Federal Office of Surface Mining or such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity. In this subtitle, the following terms have the meanings indicated. Terms Defined. “Acid drainage” means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mine and reclamation operation, or from an area affected by surface coal mining and reclamation operations. “Acid-forming materials” means earth materials which, if exposed to air, water, or weathering processes, form acids that may create acid drainage. “Adjacent area” means land located outside the permit area where air, surface or ground water, fish, wildlife, vegetation, or other resources may be adversely impacted by surface coal mining and reclamation operations. “Affected area” means, with respect to surface mining activities, any land or water which is disturbed during the term of the permit. With respect to underground mining activities, “affected area” means any water or surface land upon or in which those activities are conducted or located, and land or water which is located above underground mine workings. “Agricultural use” means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants. “Applicant” means a person seeking a permit from the Bureau to conduct prospecting or mining and reclamation operations under the Regulatory Program. “Application” means the documents and other information filed with the Bureau under the Regulatory Program for the issuance of a prospecting or mining permit. “Approximate original contour” means that surface configuration achieved by backfilling and grading of the affected area that eliminates all highwalls and spoil piles, so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land before mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated. Permanent water impoundments may be allowed where the Bureau has determined that these impoundments comply with the Regulatory Program. “Aquifer” means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use. “Backfill” means to place spoil material into an excavated area to a predetermined slope. “Best technology currently available” means equipment, devices, systems, methods, or techniques which will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but not result in contributions of suspended solids in excess of requirements set by applicable State or federal laws; and which will minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the Bureau, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with the standards of the Regulatory Program. Within the constraints of the Regulatory Program, the Bureau shall have the discretion to determine the best technology currently available on a case-by-case basis. “Blasting” means detonation of explosives. “Bureau” means the Maryland Bureau of Mines. “Coal mine waste” means coal processing waste and underground development waste. “Coal preparation plant” means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities including, but not limited to the following: Loading facilities; Storage and stockpile facilities; Sheds; Shops and other buildings; Water treatment and storage facilities; Settling basins and impoundments; and Coal processing and other waste disposal areas. “Coal processing wastes” means earth materials which are combustible, physically unstable, or acid-forming or toxic-forming, which are wasted or otherwise separated from product coal, and transported from coal processing plants, after physical or chemical processing, cleaning, or concentrating of coal. “Collateral bond” means an indemnity agreement in a certain sum payable to the Bureau executed by the permittee and which is supported by the deposit with the Bureau of cash, negotiable bonds of the United States, negotiable certificates of deposit, or an irrevocable letter of credit issued by any bank located in and authorized to transact business in Maryland. “Combustible material” means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise. “Committee” means the Land Reclamation Committee, as established by Environment Article, §15-204, Annotated Code of Maryland. “Compaction” means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment. “Complete application” means an application for a prospecting or mining permit which contains all information required under the Regulatory Program. “Cross drain” means a ditch constructed to carry away excessive drainage from a main collection point. “Cumulative impact area” means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of anticipated mining on surface and ground water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond releases of: The proposed operation; Existing operations; Operations for which a permit application has been submitted to the Bureau; and Operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available. “Cut” means excavation to remove overburden in a single progressive line. “Director” means the Director of the Maryland Bureau of Mines or his duly authorized representative. “Disturbed area” means an area from which vegetation, topsoil, or overburden is removed or land occupied by topsoil stockpiles, spoil piles, the open-pit, access or haul roads, haulageways, storage areas, shop areas, processing and shipping areas, drainage or sediment control structures, coal processing wastes, underground development waste, or non-coal waste. The area shall be considered disturbed until reclamation is complete and all performance bonds for the area are released. “Diversion” means a channel, embankment, or other manmade structure constructed to divert water from one area to another. “Downslope” means the land surface between the projected outcrop of the lowest coal seam being mined and a valley floor. “Embankment” means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads, or railways, or for other similar purposes. “Ephemeral stream” means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table. “Excess spoil” means spoil material disposed of in a location other than the mined-out area. In nonsteep slope areas, spoil material used to achieve the approximate original contour by blending the spoil on the mined-out area with the surrounding terrain is not considered excess spoil. “Existing structure” means a structure or facility used in connection with, or to facilitate, mining and reclamation operations for which construction began before approval of the Regulatory Program. “Explosive” means any chemical compound, mixture, or device, the primary purpose of which is to function by explosion, that is, with substantially instantaneous release of gas and heat, unless the compound, mixture, or device is otherwise specifically classified by the Interstate Commerce Commission. “Face of coal” means the exposed vertical cross section of the natural coal seam or deposit being mined and generally forming the base of the highwall left by excavating operations in surface mining. “Fill bench” means that portion of a bench formed by spoil or overburden which has been deposited over the original slope. “Fugitive dust” means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations, it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed. “General area” means, with respect to hydrology, the topographic and ground water basin surrounding a permit area which is of sufficient size, including aerial extent and depth, to include one or more watersheds containing perennial streams and ground water zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface and ground water systems in the basins. “Ground water” means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated. “Head-of-hollow fill” means a fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow measured at the steepest point are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees In fills less than 250,000 cubic yards of material, associated with contour mining, the top surface of the fill will be at the elevation of the coal seam. In all other head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area. “Highwall” means the vertical wall consisting of the exposed coal seam and overlying strata during or after excavating operations. “Historically used for croplands” means: Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land, for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations; Lands that the Bureau determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding the acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land. “Hydrology” appears in this subtitle under the following terms and meanings: “Hydrologic balance” means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage. “Hydrologic regime” means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration. “Probable cumulative impact” means the expected total qualitative and quantitative direct and indirect effects of mining and reclamation activities on the hydrologic regime. “Probable hydrologic consequence” means the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the surface or ground water flow, timing, and pattern; the stream channel conditions; and the aquatic habitat on the permit area and other affected areas. “Imminent danger to the health and safety of the public” means the existence of any condition or practice, or any violation of a permit or other requirements of the Regulatory Program, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement. “Impounding structure” means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semi-liquid material. “Impoundment” means a closed basin naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste. “In situ processes” means activities conducted, on the surface or underground, in connection with in-place distillation retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, and fluid recovery mining. “Intermittent stream” means: A stream or reach of a stream that drains a watershed of at least 1 square mile; or A stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge. “Irreparable damage to the environment” means any damage to the environment that cannot be corrected by actions of the applicant. “Lands eligible for remining” means any land that would otherwise be eligible for expenditures under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland. “Land use” means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. “Low wall” means the side of the fill bench facing the highwall. “Material damage”, in the context of COMAR 26.20.02.15 and .16, 26.20.13.07, .09, and .10, and 26.20.14.13, means: Any functional impairment of surface lands, features, structures, or facilities; Any physical change that: Has a significant adverse impact on the affected land's capability to support current or reasonably foreseeable uses; or Causes significant loss in production or income; or Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition. “Mining” appears in this subtitle under the following terms and meanings (the terms open-pit, surface, and strip mining are used interchangeably in these regulations): “Auger mining” means a method of mining coal at a highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface. “Deep mining” means removal of the mineral being mined without the disturbance of the surface, as distinguished from surface mining. “Open-pit mining” means the mining or recovery of coal by removing the material which overlies the coal seam in its natural condition. “Surface coal mining operations” means: Activities conducted on the surface of lands in connection with a surface coal mine or surface operations and surface impacts incident to an underground coal mine. These activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open-pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal at or near the minesite, including extraction of coal from coal refuse piles; and Areas upon which these activities occur or where those activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any of these activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailing, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are situated structures, facilities, or other property or material on the surface, resulting from or incident to those activities. “Surface coal mining and reclamation operations” means surface coal mining operations and all activities necessary or incidental to the reclamation of these operations. “Surface mining activities” means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal by auger mining or by recovery of coal from a deposit that is not in its original geologic location. “Underground mining activities” means a combination of: Surface operations incident to underground extraction of coal or in situ processing, such as construction use, maintenance, and reclamation of roads, above-ground repair areas, storage areas, shipping areas, areas upon which are situated support facilities including hoist and ventilating ducts, areas used for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed; and Underground operations such as underground construction, operations and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting. “Moist bulk density” means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105°C. “Monitoring” means the collection of environmental data by either continuous or periodic sampling methods. “Mulch” means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth. “Natural drainway” means any watercourse or channel which carries water to the tributaries and rivers of the watershed. Streams classified as perennial or intermittent streams by the U.S. Geological Survey shall be considered as natural drainways. “Noxious plants” means species that have been included on the official list of noxious plants for Maryland. “Open-acre” means the disturbed area, excluding any area which has not been cleared and grubbed and any area which has been satisfactorily backfilled, regraded, topsoiled, seeded, and mulched (or reclaimed to an alternate postmining land use) in accordance with an approved reclamation plan, and which will not be redisturbed. “Open-acre limit” means the number of acres approved to be bonded as openacres and for which a bond is posted before the issuance of a permit. “Outslope” means the face of the spoil or embankment sloping downward from the highest elevation to the lower limit of the disturbed land. “Overburden” means material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil. “Owned or controlled” and “owns or controls” means any one or a combination of the relationships specified in §B(62)(a) and (b) of this regulation. These relationships: Constitute ownership or control: By being a permittee of a surface coal mining operation, Based on instruments of ownership or voting securities, by owning of record in excess of 50 percent of an entity, or By having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, or other entity conducts surface coal mining operations; Are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not have the authority, directly or indirectly, to determine the manner in which the relevant surface coal mining operation is conducted: By being an officer or director of an entity, By being the operator of a surface coal mining operation, By having the ability to commit the financial or real property assets or working resources of an entity, By being a general partner in a partnership, Based on the instruments of ownership or the voting securities of a corporate entity, by owning of record 10 through 50 percent of the entity, By owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having the right to receive the coal after mining, or By owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having authority to determine the manner in which that person or another person conducts a surface coal mining operation. “Perennial stream” means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff. “Performance bond” means a surety bond, collateral bond, or a combination of these, by which a permittee assures faithful performance of all the requirements of the permit and reclamation plan. “Permanent diversion” means a diversion remaining after surface coal mining and reclamation operations are completed. “Permanent impoundment” means an impoundment which is approved by the Bureau and, if required, by other State and federal agencies for retention as part of the postmining land use. “Permit” means a permit issued by the Bureau to conduct prospecting or mining and reclamation operations. “Permit area” means the area of land and water within the boundaries of the permit which are designated on the permit application maps approved by the Bureau. This area shall include, at a minimum, all areas which are proposed to be affected by the surface coal mining and reclamation operations during the term of the permit. “Permittee” means a person holding or required to hold a permit to conduct surface coal mining and reclamation operations issued by the Bureau. “Person” means an individual, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agency, unit, or instrumentality of federal, State, or local government including any publicly owned utility or publicly owned corporation of federal, State, or local government. “Person having an interest which is or may be adversely affected or person with a valid legal interest” means any person: Who uses any resource of economic, recreational, esthetic, or environmental value that may be adversely affected by coal prospecting or surface coal mining and reclamation operations or any related action of the Bureau; or Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Bureau. “Precipitation event” means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these regulations, precipitation event also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time. “Previously mined area” means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this subtitle. “Prime farmland” means those lands which are defined by the Secretary of United States Department of Agriculture in 7 CFR 657 and which have historically been used for cropland. “Principal shareholder” means any person who is the record or beneficial owner of 10 percent or more of any class of voting stock. “Professional engineer” means an individual licensed by the State Board for Professional Engineers to practice engineering in Maryland. “Property to be mined” means both the surface and mineral estates on and underneath lands which are within the permit area. “Prospecting” means the gathering of subsurface geologic, physical, or chemical data by trenching, drilling, geophysical, or other techniques to determine the quantity or quality of the overburden and coal of an area. “Reclamation” means those actions taken to restore mined land as required by the Regulatory Program to a postmining land use approved by the Bureau. “Recurrence interval” means the interval of time in which a precipitation event is expected to occur once on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years. “Reference area” means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the Bureau. Reference areas shall be representative of geology, soil, slope, and vegetation in the permit area. “Regulatory Program” means the Maryland program for control of mining and reclamation operations, as approved by the Secretary of the U. S. Department of Interior, including all laws, rules, and regulations enacted and adopted that apply to mining and reclamation operations. Interim Regulatory Program means the Maryland Program for control of mining and reclamation operations before approval of the Regulatory Program. “Renewable resource lands” means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands. Replacement of Water Supply. “Replacement of water supply” means, with respect to water supplies contaminated, diminished, or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. “Replacement of water supply” includes: Provision of an equivalent water delivery system; and Payment of operation and maintenance cost in excess of customary and reasonable delivery costs for premining water supplies. “Road” means a surface right-of-way for purposes of travel by land vehicles used in prospecting or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches, and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in prospecting or surface coal mining and reclamation operations, including use by coal hauling vehicles leading to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas. “Safety factor” means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces as determined by accepted engineering practices. Sedimentation Pond. “Sedimentation pond” means an impoundment used as a primary sediment control structure designed, constructed, and maintained in accordance with the Regulatory Program and including but not limited to a barrier, dam, or excavated depression which slows down water runoff to allow sediment to settle out. “Sedimentation pond” does not include secondary sedimentation control structures such as straw dikes, riprap, check dams, mulches, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment to the extent that these secondary sedimentation structures drain to a sedimentation pond. “Significant imminent environmental harm to land, air, or water resources” means the following: An environmental harm is an adverse impact on land, air, or water resources, which resources include but are not limited to plant and animal life; An environmental harm is imminent if a condition, practice, or violation exists which is causing this harm, or may reasonably be expected to cause this harm at any time before the end of the reasonable abatement time that would be set under a notice of violation issued by the Bureau; An environmental harm is significant if that harm is appreciable and not immediately reparable. “Slope” means average inclination of a surface, measured from the horizontal, expressed in percents, degrees, or as the ratio of a given number of units of horizontal distance to a unit of vertical distance (for example, 5:1). Soil Horizons. “Soil horizons” means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four master soil horizons are: “A” horizon—the uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest. “E” horizon—the layer commonly near the surface below an “A” horizon and above a “B” horizon. An “E” horizon is most commonly differentiated from an overlying “A” horizon by lighter color and generally has measurably less organic matter than the “A” horizon. An “E” horizon is most commonly differentiated from an underlying “B” horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties. “B” horizon—the layer that typically is immediately beneath the “E” horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the “E” or “C” horizons. “C” horizon—the deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity. “Soil survey” means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets these soils for use. “Spoil” means overburden that has been removed during surface coal mining operations. “Stabilize” means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties such as by providing a protective surface coating. “Steep slope” means a slope of more than 20 degrees. “Substantially disturb” means, for purposes of prospecting, to impact significantly upon land, air, or water resources by such activities as blasting, mechanical excavation, drilling or altering coal or water exploratory holes or wells, construction of roads and other access routes, and the placement of structures, excavated earth, or other debris on the surface land. “Successor in interest” means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights. “Surety bond” means an indemnity agreement in a certain sum payable to the Bureau, executed by the permittee, which is supported by the performance guarantee of a corporation licensed to do business as a surety in the State. “Suspended solids or nonfilterable residue, expressed as milligrams per liter” means organic or inorganic materials carried by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR 136). “Temporary diversion” means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the Bureau to remain after reclamation as part of the approved postmining land use. “Temporary impoundment” means an impoundment used during surface coal mining and reclamation operations, but not approved by the Bureau to remain as part of the approved postmining land use. “Topsoil” means the “A” horizon and “E” horizon as defined in §B(87) of this regulation. “Toxic mine drainage” means water that is discharged from active or abandoned mines or other areas affected by prospecting or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it. “Toxic-forming materials” means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water. “Transfer, assignment, or sale of rights” means a change in ownership or other effective control over the right to conduct prospecting or mining operations under a permit issued by the Bureau. “Underground development wastes” means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of during development and preparation of areas incident to underground mining activities. “Valley fill” means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees. “Violation notice” means any written notification from a governmental entity of a violation of law, regulation, permit condition, whether by letter, memorandum, legal or administrative pleading, or other written communication. “Waste” means earth materials, which are combustible, physically unstable, or acid-forming or toxic-forming, wasted or otherwise separated from product coal, and are slurried or otherwise transported from coal-processing facilities or preparation plants after physical or chemical processing, cleaning or concentration of coal. “Water table” means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone. “Willful violation” means an act or omission which violates the State or federal laws or regulations, or individual permit conditions, committed by a person who intends the result which actually occurs. Environment Article, §§15-503 and 15-603, Annotated Code of Maryland Effective date: Regulations .01 and .02 were previously codified as COMAR 08.13.09.01A and B, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .02B amended effective October 23, 1995 (22:21 Md. R. 1614) Chapter recodified from COMAR 08.20.01 to COMAR 26.20.01, June 1996 Regulation .02B amended effective March 22, 1999 (26:6 Md. R. 488); February 5, 2001 (28:2 Md. R. 105); July 8, 2002 (29:13 Md. R. 993); March 14, 2005 (32:5 Md. R. 581) Effective date: December 1, 1980 (7:25 Md. R. 2334) Regulations .01A, B; .02A, B, I, K—M, O, P; .03E; .04A—C, G, L, M, O; .05A; .08B—D; .11G; .15I, J; .22A—G; .23D; .24A, C, F, G; .28G, and .34A amended; .30 (formerly Regulation .22X) adopted; .02C and .22H—U repealed effective August 15, 1983 (10:16 Md. R. 1451) Regulations .01B; .02A, B, C, I, M, O; .03D, G; .04A; .05A; .23J; .25C, .26A, D; .31A, D; .35A, D; .40F, G, H; .41; .42A, B, D amended effective April 3, 1981 (8:7 Md. R. 641) Regulations .01B, .03, and .28E amended as an emergency provision effective March 25, 1986 (13:8 Md. R. 889); emergency status extended to July 21, 1986 (13:15 Md. R. 1726); adopted permanently effective July 28, 1986 (13:15 Md. R. 1733) Regulations .01—.04, .07—.08, .11, .22, .24—.25, .28, .30 and .34 amended as an emergency provision effective July 26, 1982 (9:17 Md. R. 1688); emergency status extended to December 20, 1982 (9:23 Md. R. 2253); amended as an emergency provision effective February 25,1983 (10:6 Md. R. 535); emergency status expired June 25, 1983 Regulations .01, .02, .04, .05, .08, .10, .11, .26, .35, and .40 amended effective September 28, 1992 (19:19 Md. R. 1704) Regulations .02Q, R, S; .43O; .44 adopted effective April 3, 1981 (8:7 Md. R. 641) Regulations .02S; .06B, C; .10B; .40E amended effective October 26, 1981 (8:21 Md. R. 1706) Regulations .02A—C and .04A amended as an emergency provision effective January 23, 1981 (8:3 Md. R. 222) Regulation .02C amended as an emergency provision effective May 1, 1981 (8:10 Md. R. 874) Regulation .02O amended effective August 26, 1985 (12:17 Md. R. 1702) Regulations .03, .13J, .17, .28A, B, .31A, .32A, .33, and .34B, C amended effective January 6, 1992 (18:26 Md. R. 2829) Regulation .07 repealed and new .07 adopted effective August 15, 1983 (10:16 Md. R. 1453) Regulation .09 adopted effective April 8, 1985 (12:7 Md. R. 700) Regulation .15B, C, F, and H amended effective August 30, 1982 (9:17 Md. R. 1706) Regulation .15C and F amended effective September 12, 1983 (10:18 Md. R. 1608) Regulation .25 amended effective August 26, 1985 (12:17 Md. R. 1702) Regulation .40 amended effective August 15, 1983 (10:16 Md. R. 1453) Regulation .40K adopted effective October 26, 1981 (8:21 Md. R. 1706) Regulation .40K repealed effective April 8, 1985 (12:7 Md. R. 700) Regulation .40L renumbered to be .40K effective April 8, 1985 (12:7 Md. R. 700) Regulation .41 amended effective July 6, 1992 (19:13 Md. R. 1201) Regulation .42 amended effective July 24, 1989 (16:14 Md. R. 1568) Regulation .43 amended effective April 3, 1989 (16:6 Md. R. 727); June 25, 1990 (17:12 Md. R. 1493) Regulation .43B amended as an emergency provision effective January 23, 1990 (17:3 Md. R. 293); emergency status expired June 28, 1990 A person may not conduct surface coal mining and reclamation operations as an operator within the State without first obtaining a permit from the Bureau and any other permits or approvals required by law, except that a person conducting surface coal mining operations on the effective date of these regulations, that were not regulated under the Interim Regulatory Program, may continue to conduct those operations until 8 months from the effective date of these regulations or until such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, if an application for a permit has been made to the Bureau in accordance with the order of the Circuit Court for Allegany County in No. 35343, Equity. Except as provided for in this section, on and after 8 months from the effective date of these regulations or on or after such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, a person may not conduct surface coal mining operations unless that person has first obtained a permit issued by the Bureau pursuant to the Regulatory Program and that person complies with the terms and conditions of the permit and the requirements of the Regulatory Program. However, a person conducting surface coal mining operations under a permit issued or amended by the Bureau, in accordance with the requirements of the Interim Regulatory Program, may conduct those operations after 8 months from the date of approval, or after such date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, if: An application for a permit has been made to the Bureau by the date specified in the order of the Circuit Court for Allegany County in No. 35343, Equity; The Bureau has not yet rendered an initial decision with respect to this application; and The operations are conducted in compliance with all terms and conditions of the interim permit and the Interim Regulatory Program. The Bureau may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation or increment of it, if the Bureau determines, in writing, that under the regulatory program, all requirements imposed under the applicable regulatory program have been successfully completed or, if a performance bond was required, the Bureau has made a final decision in accordance with this subtitle to fully release the performance bond. Following a termination under §C of this regulation, the Bureau shall reassert jurisdiction under the regulatory program over a site if it is demonstrated that the bond release or written determination referenced in §C of this regulation was based on fraud, collusion, or misrepresentation of a material fact. Information set forth in the application shall be current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the Bureau. All technical data submitted in the application shall be accompanied by the names of persons or organizations which collected and analyzed the data, the dates of the collection and analyses, and the descriptions of methodology used to collect and analyze the data. Technical analyses shall be planned by or under the direction of a professional qualified in the subject to be analyzed. The application shall state the name, address, and position of officials of each private or academic research organization or governmental agency consulted by the applicant in preparation of the application for information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archeological, cultural, and historic features. Maps submitted with applications shall include all types of information that are set forth on 7.5 minute topographic maps of the U.S. Geological Survey. Maps of the permit area, the mine plan area and within 1/2 mile of the mine plan area shall be at a scale of 500 feet to the inch or larger. Maps of the adjacent areas shall clearly show the lands and waters within those areas and be at a scale of 1 inch equals 2,000 feet or larger. Maps and plans submitted with the applications shall distinguish among each of the phases during which surface coal mining operations were or will be conducted at any place within the mine plan area. At a minimum, distinctions shall be clearly shown among those portions of the mine plan area in which surface coal mining operations occurred before August 3, 1977; after August 3, 1977, and before May 3, 1978; after May 3, 1978, and before the effective date of these regulations; and after the estimated date of issuance of a permit by the Bureau. Each application for a surface coal mining and reclamation permit pursuant to the Regulatory Program shall be accompanied by a $10 fee. Applications for permits shall be submitted on forms provided by the Bureau and shall be verified under oath, by a responsible official of the applicant, that the information contained in the application is true and correct to the best of the official's information and belief. All water quality analyses performed to meet the requirements of this chapter shall be conducted according to the methodology required by 30 CFR §780.21. Modeling techniques, interpolation, or statistical techniques may be included as part of a permit application, but actual surface and ground water information may be required by the Bureau when these techniques are used. Except that the submission of a Social Security number is voluntary, a mining permit application shall contain the following: The names, addresses, telephone numbers, and, as applicable, Social Security numbers and employer identification numbers of: The permit applicant; The operator, if the operator is a person different from the applicant; The resident agent of the applicant who will accept service of process; and The person who will pay the abandoned mine land reclamation fee. The names and addresses of: Every legal or equitable owner of record of the property (surface and mineral) to be mined; The holders of record of any leasehold interest in the property to be mined; and Any purchaser of record under a real estate contract of the property to be mined. A statement of whether the applicant is a corporation, partnership, single proprietorship, association, and other business entity. For each person who owns or controls the applicant under the definition of “owned or controlled” and “owns or controls” in COMAR 26.20.01.02B(62), as applicable: The person's name, address, Social Security number, and employer identification number; The person's ownership or control relationship to the applicant, including percentage of ownership and location in organization structure; The title of the person's position, the date the position was assumed, and when submitted under COMAR 26.20.05.03I, the date of departure from the position; Each additional name and identifying number, including employer identification number, federal or State permit number, and MSHA number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within 5 years preceding the date of the application; and The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States. For a surface coal mining operation owned or controlled by either the applicant or by a person who owns or controls the applicant, the operation's: Name, address, identifying numbers, including employer identification number, federal or State permit number and MSHA number, the date of issuance of the MSHA number, and the issuing regulatory authority; and Ownership and control relationship to the applicant, including percentage of ownership and location in the organizational structure. The names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area. The name of the proposed mine and Mine Safety and Health Administration identification number for the mine and all sections, if any. A statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands which are contiguous to the area to be covered by the permit. A statement of whether the applicant, any subsidiary, affiliate, or persons controlled by or under common control with the applicant, has had a federal or State mining permit suspended or revoked in the last 5 years, or has forfeited a mining bond or similar security deposited in lieu of bond. If any suspension, revocation, or forfeiture has occurred, a statement of the facts involved, including: Identification number and date of issuance of the permit or date and amount of bond or similar security; Identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reasons for the action; The current status of the permit, bond, or similar security involved; The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and The current status of these proceedings. A list of all violation notices received by the applicant during the 3-year period preceding the application date for any violation of a provision of: The Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87); A law, rule, or regulation of the United States; and A State law, rule, or regulation enacted under federal law, rule, or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation. A list of all unabated cessation orders and unabated air and water quality violation notices received before the date of the application by any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported under §§K and L of this regulation, the lists shall include the following information, as applicable: Identifying numbers for the operation, including the: Federal or State permit number and MSHA number, Dates of issuance of the violation notice, and MSHA number; The name of the person to whom the violation notice was issued; The name of the issuing regulatory authority, department, or agency; A brief description of the violation alleged in the notice; The date, location, and type of any administrative or judicial proceedings initiated concerning the violation; The current status of the proceedings and of any violation notice; and The actions taken to abate the violation. A description of the documents upon which the applicant bases his legal right to enter and begin surface mining activities in the permit area and whether that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant. When the private mineral estate to be mined has been severed from the private surface estate, the application shall also provide, for lands within the permit area: A copy of the written consent of the surface owner to the extraction of coal by surface mining methods; A copy of the document of conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under State law the applicant has the legal authority to extract the coal by those methods; or Information which pertains solely to the payment of royalties, or other specific financial obligations of the applicant, may be deleted from the submitted documents. A copy of the written consent of landowner, on a form furnished by the Bureau, for the operator or the State or any of its authorized agents to enter on any land affected by the operator within a period of 5 years after the operation is completed and reclaimed in accordance with the specifications of the Bureau or abandoned. The consent shall include a commitment by the landowner that neither he nor his agents will perform any act or cause any act to be performed on the affected area which is inconsistent with any provision of the approved mining and reclamation plan or these regulations without the prior approval of the Bureau. A waiver from the owner of any occupied dwellings within 300 feet of the proposed surface mining activities, if applicable, and full information in support of any other waivers desired by the applicant under COMAR 26.20.10. A certificate of liability insurance. A statement of whether the proposed permit area is within an area designated unsuitable for surface mining activities or under study for designation in an administrative proceeding. If the proposed permit area is within an area under study for designation as unsuitable for surface mining activities and the applicant asserts that substantial legal and financial commitments were made before January 4, 1977, concerning the proposed surface mining activities, the application shall contain information supporting the applicant's assertion. The anticipated or actual starting and termination date of each phase of the surface mining activities and the anticipated number of acres of land to be affected for each phase of mining, and over the total life of the permit. If the applicant proposes to conduct the surface mining activities in excess of 5 years, the application shall contain information demonstrating that a permit term in excess of 5 years is needed to allow the applicant to obtain necessary financing of equipment and the opening of the operation, and this need is confirmed in writing by the applicant's proposed source of financing. The name and address of the public office where the applicant will simultaneously file a copy of the application for public inspection under COMAR 26.20.04.04. A copy of the newspaper advertisement of the application and proof of publication of the advertisement shall be filed with the Bureau and made a part of the complete application, not later than 2 weeks after the last date of publication required under COMAR 26.20.04.03. A permit application shall include a description of the existing, premining cultural and historical resources within the proposed permit and adjacent areas that may be affected or impacted by the proposed surface mining activities. The description required by §A of this regulation shall include the nature of cultural and historic resources listed on or eligible for listing on the National Register of Historic Places and known archeological features. The description shall be based on all available information including, but not limited to, data of State and local archeological, historical, and cultural preservation agencies. A permit application shall include baseline hydrologic information for the permit and adjacent areas in sufficient detail to assist in determining the probable hydrological consequences of the proposed operation. The baseline ground water hydrology information shall include: The location and ownership of existing wells, springs, and other ground water supplies; The depth below the surface, lithology, thickness, and approximate areal extent of identified aquifers; The seasonal quality, quantity, and usage of ground water; Monitoring data on which the description of the seasonal variation in ground water quality is based, which includes total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, sulfates, acidity, and alkalinity; Monitoring data, on which the description of the seasonal variation in ground water quantity is based, which includes approximate rates of discharge or usage, depth of wells, and depth to water in the wells; and Additional information, as required by the Bureau, which describes the usage, recharge, storage, and discharge characteristics of aquifers and the quality and quantity of ground water. The baseline surface water hydrology information shall include: A description of the watersheds which will receive water discharges, including the area and land uses by approximate percentage of watershed area; The name and location of all surface water bodies such as streams, lakes, ponds, and impoundments; The location and nature of any discharge into the surface water system; A description of the seasonal variation in quality, quantity, and usage of surface water resources; Monitoring data on which the description of the seasonal variation in surface water quality is based, including analyses of total suspended solids, total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, sulfates, acidity, and alkalinity; Monitoring data on which the description of the seasonal variation in surface water quantity is based, including measurements obtained during periods indicative of different seasonal flow rates; and Additional information pertaining to quality, quantity, or usage of surface water as required by the Bureau, which describes characteristics of the surface water system. A permit application shall include geologic information for the permit and adjacent area in sufficient detail to assist in determining the probable hydrologic consequences of the proposed operation, the existence of potentially acid-forming or toxic-forming strata, whether reclamation can be accomplished, and whether the operation has been designed to prevent material damage to the hydrologic balance outside the permit area, including: A description of the structural geology, stratigraphy, and parameters which influence site reclamation and the occurrence, availability, movement, quantity, and quality of potentially impacted surface or ground water, based on: The cross sections, maps, and plans required by Regulation .11 of this chapter, The information obtained under §A(2) and (5) of this regulation, and Geological literature and practices; Analyses of samples collected from test borings, drill cores, or fresh, unweathered, uncontaminated samples from rock outcrops from the permit area, down to and including the deeper of either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest seam to be mined which may be adversely impacted by mining, which identify: Those strata that may contain acid-forming or toxic-forming or alkalinity-producing materials, except that the Bureau may find the analysis for alkalinity-producing materials is unnecessary, and The chemical analyses of the coal seam for acid-forming or toxic-forming materials, total sulfur, and pyritic sulfur, except that the Bureau may find that the analysis of pyritic sulfur content is unnecessary; Logs showing lithologic characteristics, including physical properties and thickness of each stratum; The location of ground water where occurring; and The collection, analysis, and description of any additional geologic information determined by the Bureau to be necessary to protect the hydrologic balance or to meet the performance standards of this subtitle. An applicant may request the Bureau to waive in whole or in part the requirements of §A(2)—(4) of this regulation. The waiver may be granted if the Bureau finds in writing that the collection and analysis of the data is unnecessary or because other equivalent information is available to the Bureau in a satisfactory form. A permit application shall include a determination of the probable hydrologic consequences of the proposed operation upon the quality and quantity of surface and ground water under seasonal flow conditions for the proposed permit and adjacent areas. The determination shall be based on the information required under Regulations .06 and .07 of this chapter, and may include the use of modeling, interpolation, or statistical techniques. The determination of the probable hydrologic consequences shall include findings on: Whether adverse impacts may occur to the hydrologic balance; Whether acid-forming or toxic-forming materials are present that could result in the contamination of surface or ground water supplies; Whether the proposed operation may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial, or other legitimate purpose; and What impact the proposed operation will have on: Sediment yield from the disturbed area, Acidity, total suspended and dissolved solids, and other important water quality parameters of local impact, Flooding or stream flow alteration, Ground water and surface water availability, and Other characteristics as required by the Bureau. If the probable hydrologic consequences determination indicates that adverse impacts on or off the proposed permit area may occur to the hydrologic balance, or that acid-forming or toxic-forming material is present that may result in the contamination of ground water or surface water supplies, the permit application shall include information supplemental to that required under Regulations .06 and .07 of this chapter to evaluate the probable hydrologic consequences and to plan remedial and reclamation activities. The supplemental information may be based on: Drilling; Aquifer tests; Hydrogeological analysis of the water-bearing strata; Flood flows; or Analysis of other water quality or quantity characteristics. If the probable hydrologic consequences determination indicates that the proposed mining operation may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial, or other legitimate purpose, the application shall contain information on water availability and alternative water sources, including the suitability of alternative water sources for existing premining uses and approved postmining land uses. If required by the Bureau, the application shall include hydrologic and geologic information available from appropriate federal or State agencies necessary to assess the probable cumulative hydrologic impact of the proposed operation, and all anticipated mining on the surface and ground water systems of the cumulative impact study area designated by the Bureau. If the information is not available from federal and State agencies, the applicant may gather and submit the required information to the Bureau as part of the permit application. Each permit application shall include a description of the existing premining environmental resources within the proposed mine plan area and adjacent areas that may be affected or impacted by the proposed surface mining activities. The description shall include: When required by the Bureau, a statement of the climatological factors that are representative of the proposed mine plan area, including the average seasonal precipitation, the average direction and velocity of prevailing winds, and seasonal temperature ranges. When required by the Bureau, a map that delineates existing vegetative types and a description of the plant communities within the proposed permit area and within any proposed reference area. This description shall include information adequate to predict the potential for re-establishing vegetation. Fish and wildlife resource information for the permit and adjacent area, at the scope and level of detail determined by the Bureau in consultation with State or federal agencies with responsibility for fish and wildlife, sufficient to design the fish and wildlife protection and enhancement plan required under Regulation .13H of this chapter, including site specific fish and wildlife resource information necessary to assess the respective species when the permit or adjacent area is likely to contain: Listed or proposed endangered or threatened species of plants or animals and their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and those species and habitats protected by similar State statutes, Eagles, migratory birds, and other species identified as requiring special protection under State or federal law, and Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, and reproduction and wintering areas. Soil survey information of those lands within the permit area which a reconnaissance inspection suggests may be prime farmlands, consisting of the following: A map delineating different soils; Soil identification; Soil description; Present and potential productivity of existing soils; If the applicant proposes to use selected overburden materials as a supplement or substitute for topsoil, the results of analyses, trials, and tests of overburden and topsoil. A statement of the condition, capability, and productivity of the land within the proposed permit area, including: A narrative of the uses of the land existing at the time of the filing of the application. If the premining use of the land has changed within 5 years before the anticipated date of beginning the proposed operations, the historic use of the land shall also be described. A narrative of land capability and productivity. The narrative shall provide analyses of the capability of the land, before any mining, to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover, and the hydrology of the proposed permit area; and the productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from these lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, State agricultural universities, or appropriate State natural resource or agricultural agencies. If the proposed permit area has been previously mined, provide information concerning the uses of the land preceding mining, if available. A description of the existing land use classifications under local law of the proposed permit and adjacent areas. Identification of the pre-mining use or uses of the land according to one or more of the following land-use categories: “Cropland”, which is land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land used for facilities in support of cropland farming operations which is adjacent to or an integral part of these operations is also included. “Pastureland or land occasionally cut for hay”, is land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed. Land used for facilities in support of pastureland or land occasionally cut for hay which is adjacent to or an integral part of these operations is also included. “Grazingland”, which includes both grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production. Land use for facilities in support of ranching operations which are adjacent to or an integral part of these operations is also included. “Forestry”, which is land used or managed for the long-term production of wood, wood fiber, or wood-derived products. Land used for facilities in support of forest harvest and management operations which is adjacent to or an integral part of these operations is also included. “Residential”, which includes single and multiple-family housing, mobile home parks, and other residential lodgings. Land used for facilities in support of residential operations which is adjacent to or an integral part of these operations is also included. Support facilities include but are not limited to vehicle parking and open space that directly relate to the residential use. “Industrial/commercial”, which is land used for: Extraction or transformation of materials for fabrication of products, wholesaling of products, or for long-term storage of products. This includes all heavy and light manufacturing facilities such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included. Support facilities include but are not limited to all rail, road, and other transportation facilities. Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included. Support facilities include but are not limited to parking, storage, or shipping facilities. “Recreation”, which is land used for public or private leisure-time use, including developed recreation facilities such as parks, camps, and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses. “Fish and wildlife habitat”, which is land dedicated wholly or partially to the production, protection, or management of species of fish and wildlife. “Developed water resources”, which includes land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply. “Undeveloped land or no current use or land management”, which is land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession. Other relevant information required by the Bureau. The permit application shall include at least one U.S. Geological Survey, 7.5 minute topographic quadrangle map enlarged to a scale of 500 feet to the inch or larger, covering the proposed permit area and the land within 1/2 mile of the perimeter of the permit area, which identifies: The boundaries of surface properties within the permit area and within 1,000 feet of the permit area and the names of the owners of the surface properties within the permit area and within 1/2 mile of the permit area; The names of the mineral owners in and contiguous to the permit area, and a breakdown of the mineral ownership by boundaries and acreage within the permit area; The boundaries of the proposed permit area upon which the applicant has the legal right to enter and begin surface mining activities; The number of acres in the area to be disturbed including a breakdown of the acreage by property owners; A breakdown of the open acre limit to include the following categories: haul roads, equipment maintenance areas, coal stockpile areas, sediment control facilities, topsoil storage areas, and mining areas; The boundaries of all areas proposed to be affected over the estimated total life of the proposed surface mining activities, with a description of size, sequence, and timing of the mining of sub-areas for which it is anticipated that additional permits will be sought; The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings; The location of surface and subsurface man-made features within, passing through, or passing over the proposed permit area, including but not limited to major electric transmission lines, pipelines, and agricultural drainage tile fields; The location and boundaries of any proposed reference areas for determining the success of revegetation; The locations of water supply intakes for current users of the surface water flowing into, out of, and within a hydrologic area defined by the Bureau, and those surface waters which will receive discharges from affected areas in the proposed mine plan area; Each public road located in or within 1,000 feet of the proposed permit area; The boundaries of any public park, forest or wildlife management area, and locations of any cultural or historic resources listed or eligible for listing in the National Register of Historic Places, and known archeological sites within the mine plan or adjacent areas; Each public or private cemetery or Indian burial ground located in or within 100 feet of the proposed permit area; Any land within the proposed permit area and adjacent area which is within the boundaries of any units of the National System of Trails or the National or State Wild and Scenic River System, including study rivers designated under §5A. of the Wild and Scenic Rivers Act; The location of the mine and permit identification signs and perimeter markers sufficient to identify the boundaries of the permit area; The name of the nearest municipality; The State coordinates of the proposed operation; Other relevant information required by the Bureau; The date the map was prepared, the north point, a vicinity sketch in such detail as to easily locate the area to be disturbed, and a legend. Maps shall be certified with the following statement: “I, the undersigned, hereby certify that to the best of my knowledge this map is correct and shows all of the information required by the strip mining laws and regulations of the State of Maryland.” The certification shall be signed and notarized. In addition to the information required by Regulation .10 of this chapter, the permit application shall include maps, cross sections, and plans prepared by or under the direction of, and certified by, a qualified registered professional engineer or professional geologist, with assistance from people in related fields such as land surveying and landscape architecture, showing: Elevations and locations of test borings and core samplings; Locations of monitoring stations used to gather data for water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application; Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the seam to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal seam to be mined; All coal crop lines and the strike and dip of the coal to be mined within the proposed permit area; Location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed permit and adjacent areas; Location and extent of subsurface water, if encountered, within the proposed permit and adjacent areas; Location of surface water bodies such as streams, creeks, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas; The drainage pattern on and away from the land affected including the total drainage area encompassing the operation, the component drainage areas to be used in pond design, the directional flow of water, the location of constructed and natural drainways used for drainage, constructed ponds, dams, sediment traps, keyways, and culverts; Location and extent of existing or previously surface-mined areas within the proposed permit area; Location and dimensions of existing areas of spoil, waste, coal development waste, and non-coal waste disposal, dams, embankments, other impoundments, and water treatment and air pollution control facilities within the proposed permit area; Location, and depth if available, of all active, plugged, and abandoned gas, oil, and water wells and springs within 1,000 feet of the proposed permit area, including the names and addresses of the owners of all water wells and springs; Slope measurements shall be made every 200 feet along the contour, beginning with the proposed initial point of mining and including the proposed termination point of mining, measured and recorded according to the following: Each measurement shall consist of an angle of inclination along the prevailing slope, perpendicular to the contour, extending 100 linear feet above and below or beyond the coal outcrop of the area to be disturbed or, where this is impractical, at locations specified by the Bureau, If the area has been previously mined, the measurements shall extend at least 100 feet beyond the limits of mining disturbances, or any other distance determined by the Bureau to be representative of the pre-mining configuration of the land, Slope measurements shall take into account natural variations in slope, to provide accurate representation of the range of natural slopes and reflect geomorphic differences of the area to be disturbed. The applicant shall conduct a preapplication reconnaissance inspection of the proposed permit area in accordance with COMAR 26.20.03.05 to determine whether lands within the area may be prime farmland. Land may not be considered prime farmland if the applicant can demonstrate one of the following: The land has not been historically used as cropland; The slope of the land is 10 percent or greater; Other factors exist, such as a very rocky surface, or the land is frequently flooded during the growing season, more often than once in 2 years, and the flooding has reduced crop yields; or On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the U.S. Soil Conservation Service. If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination which shows that the land for which the negative determination is sought meets one of the criteria of §B of this regulation. If the investigation indicates that lands within the proposed permit area might be prime farmland, the applicant shall contact the U. S. Soil Conservation Service to determine whether the applicable soil map units have been designated as prime farmland. If so, the applicant shall submit an application in accordance with COMAR 26.20.03.05 for this designated land. Each application shall contain a description of the proposed mining operations during the life of the mine within the permit area, including: A narrative description of the type and method of proposed coal mining procedures and engineering techniques, including the measures to be used to maximize the use and conservation of the coal resource. Anticipated annual and total production of coal, by tonnage, and major equipment to be used for all aspects of the operations. The method of marking the perimeter of the permit area. A narrative explaining the construction, modification, use, maintenance, and removal (unless retention is necessary for postmining land use) of the following facilities: Dams, embankments, and other impoundments; Overburden and topsoil handling and storage areas and structures; Coal removal, handling, storage, cleaning, and transportation areas and structures; Spoil, coal processing waste, mine development waste, and non-coal waste removal, handling, storage, transportation, and disposal areas and structures; Mine facilities; and Water and air pollution control facilities. The method of site preparation including the procedure for clearing and grubbing and disposal of trees, brush, structures, and debris. A blasting plan for the proposed permit area explaining how the application will comply with the requirements of COMAR 26.20.22. The plan shall include the following: Types and approximate amounts of explosives to be used for each type of blasting operation to be conducted; Description of procedures and plans for recording and retention of information on the following during blasting: Drilling patterns, including size, number, depths, and spacing of holes, Charge and packing of holes, Types of fuses and detonation controls, and Sequence and timing of firing holes; Description of blasting warning and site access control equipment and procedures; Description of types, capabilities, sensitivities, and location of use of any blast monitoring equipment and procedures proposed to be used; Description of plans for accomplishing and reporting to the Bureau the results of pre-blasting surveys, if required; and Description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed; Information setting forth the limitations the operator shall meet with regard to ground vibration and air blast, the bases for those limitations, and the methods to be applied in controlling the adverse effects of the blasting operations; and If blasting operations are anticipated within 1,000 feet of a building used as a dwelling, public building, school, church, or community or institutional building outside the permit area, or 500 feet of an active or abandoned underground mine, a blast design shall be submitted as part of the blasting plan, which contains sketches of the drill patterns, delay periods, and decking and shall indicate the amount of explosives to be used, critical dimensions, and the location and general description of structures to be protected, as well as a discussion of design factors to be used, which protect the public and meet the applicable air blast, fly rock, and ground vibration standards in COMAR 26.20.22.06H, I, and J. The blast shall be prepared, designed, and signed by a certified blaster. An air pollution control plan which includes the following: A plan for fugitive dust control practices; and An air quality monitoring program, if required by the Bureau, to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices to comply with applicable federal and State air quality standards. A protection and enhancement plan consistent with the requirements of COMAR 26.20.23.02 for fish and wildlife and related environmental values, which describes how, to the extent possible using the best technology currently available, disturbances and adverse impacts on fish and wildlife and related environmental values identified under Regulation .09B(3) of this chapter will be minimized, including compliance with the Endangered Species Act. The plan shall describe: Protective measures to be used during the active mining phases of operation such as the: Establishment of buffer zones, Selective location and special design of haul roads and power lines, and Monitoring of surface water quality and quantity; Enhancement measures to be used during the reclamation and postmining phase of operation, to develop aquatic and terrestrial habitat such as: Restoration of streams and other wetlands, Retention of ponds and impoundments, Establishment of vegetation for wildlife food and cover, and The placement of perches and nest boxes. When enhancement measures are not practicable under §H(2) of this regulation, a statement explaining why shall be provided by the applicant as part of the plan required by §H of this regulation. Upon request, a copy of resource information provided under Regulation .09B(3) of this chapter and the protection and enhancement plan shall be provided by the Bureau to the U.S. Department of Interior, Fish and Wildlife Service regional or field office for review within 10 days of receipt of the request from the Service. Maps and plans of the proposed permit and adjacent areas showing the: Lands proposed to be affected throughout the operation and any change in a facility or feature, shown under Regulations .10 and .11 of this chapter, to be caused by the proposed operations; Area of land to be affected within the proposed permit area, according to the sequence of mining and reclamation. Maps and plans of the proposed permit area showing: Buildings, utility corridors, and facilities to be used; Each area of land for which a performance bond or other equivalent guarantee will be posted; Each coal storage, cleaning, and loading area; Each topsoil, spoil, coal waste, and non-coal waste storage area; The method of operation, indicating the extent and sequence of the cuts, and the maximum lineal feet of highwall to be open at one time; Each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used; Each air pollution collection and control facility; Each source of waste and each waste disposal facility relating to coal processing or pollution control; Each facility to be used to protect and enhance fish and wildlife and related environmental values; Each explosive storage and handling facility; and Location of each sedimentation pond, permanent water impoundment, coal processing waste bank, and coal processing waste dam and embankment, and fill area for the disposal of excess spoil. Except as provided in COMAR 26.20.26.01B, maps, plans, and cross sections required under §§K and L of this regulation shall be prepared by, or under the direction of and certified by, a qualified registered professional engineer or professional geologist. A hydrologic reclamation plan, with appropriate maps and cross sections for the measures to be taken during mining and reclamation through bond release to: Minimize disturbance to the hydrologic balance within the permit and adjacent areas; Prevent material damage outside the permit area; Meet applicable State and federal water quality laws and regulations; and Protect or replace the rights of present water users. A plan for the control and treatment, if necessary to meet applicable State and federal laws and regulations, of surface and ground water drainage into, through, and out of the permit area during the life of the permit to: Avoid acid or toxic drainage; and Prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to stream flow. A plan which specifically addresses any potential adverse hydrologic consequences identified in the probable hydrologic consequences determination prepared under Regulation .08 of this chapter and which includes preventive and remedial measures. A plan for the restoration of the approximate recharge capacity of the permit area. A plan for monitoring ground water based on the probable hydrologic consequences determination required under Regulation .08 of this chapter, and the analysis of all baseline hydrologic, geologic, and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance. It shall identify the quantity and quality parameters to be monitored, sampling frequency, and site locations, and describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. A plan for monitoring surface water based upon the probable hydrologic consequences determination required under Regulation .08 of this chapter, and the analysis of all baseline hydrologic, geologic, and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance. It shall identify the quantity and quality parameters to be monitored, sampling frequency, and site locations, and describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. A detailed description of the proposed use, following reclamation, of the land within the proposed permit area, including: The landowner's plan for use of the land according to one or more of the categories in Regulation .09B(8) of this chapter; A discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses; The relationship of the proposed use to existing land use policies and plans; An explanation of: How the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use, If grazing is the proposed postmining use, the detailed management plans to be implemented, If a land use different from the pre-mining land use is proposed, all materials needed for approval of the alternative use, The consideration which has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable State and local land use plans and programs; A copy of the comments concerning the proposed postmining land use by the: Legal or equitable owner of record of the surface of the proposed permit area, and State and local government agencies which would have to indicate, implement, approve, or authorize the proposed use of the land following reclamation. A general plan for each proposed siltation structure, sedimentation pond, water impoundment, and coal processing waste bank, dam, or embankment within the proposed mine plan area, which: Is prepared by, or under the direction of, and certified by a qualified registered professional engineer; Contains a description, contour map, plan view, and cross section of the structure; Contains hydrologic and geologic information required to assess the hydrologic impact of the structure; and Contains a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred. Design Plan. A detailed design plan for each proposed siltation structure, sedimentation pond, water impoundment, and coal processing waste bank, dam, or embankment within the proposed permit area, which: Is designed in compliance with the requirements of COMAR 26.20.21.06 and 26.20.21.08; Is prepared by, or under the direction of, and certified by a qualified registered professional engineer; Includes any geotechnical investigation, design, and construction requirements for the structure; Describes the operation and maintenance requirements for each structure; and Describes the timetable and plans to remove each structure, if appropriate. Coal Processing Waste Dam and Embankment Plan. Each coal processing waste dam and embankment plan shall contain the results of a geotechnical investigation of the proposed dam or embankment foundation area, to determine the structural competence of the foundation which will support the proposed dam or embankment structure and the impounded material. The geotechnical investigation shall be planned and supervised by an engineer or engineering geologist, according to the following: The number, location, and depth of borings and test pits shall be determined using current prudent engineering practice for the size of the dam or embankment, quantity of material to be impounded, and subsurface conditions; The character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions which may affect the particular dam, embankment, or reservoir site shall be considered; All springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the proposed dam or embankment shall be identified on each plan; The possibility of mudflows, rock-debris falls, or other landslides into the dam, embankment, or impounded material shall be considered. If a sedimentation pond, water impoundment, or coal processing waste dam, or siltation structure meets the Class (b) or (c) criteria for dams in the USDA, Soil Conservation Service Technical Release No. 60, (October 1985), as incorporated by reference in COMAR 26.20.21.01-1 or meets the size or other criteria of 30 CFR §77.216(a), the plan shall contain a stability analysis of each structure. The stability analysis shall include but not be limited to strength parameters, pore pressures, and long-term seepage conditions. The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods. A description of the measures to be used to comply with the requirements for surface mining activities within 500 feet of an underground mine, if applicable. Descriptions, including maps and cross sections, of stream channel diversions and other diversions to be constructed. Descriptions of measures to be used to: Minimize or prevent potential adverse impacts on any public parks, forests or wildlife management areas, or historic places that may be adversely affected by the proposed operations; and Obtain approval of the Bureau and the agencies with jurisdiction over these parks or places. Descriptions with appropriate maps and cross sections of the measures to be used to ensure that the interests of the public and landowners affected are protected if the applicant seeks to have the Bureau approve conducting the proposed surface mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way, or relocating a public road. Descriptions of Excess Spoil Disposal Site. Each application shall contain descriptions, including appropriate maps and cross-section drawings, of any proposed excess spoil disposal site and design of the spoil disposal structures in accordance with COMAR 26.20.26. These plans shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site and structures. Each application shall contain the results of a geotechnical investigation of the proposed disposal site, including the character of bedrock and any adverse geological conditions in the disposal area, a survey identifying all springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the disposal site, a survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations, a technical description of the rock materials to be used in the construction of those disposal structures containing rock chimney cores or underlain by a rock drainage blanket, and a stability analysis including but not limited to strength parameters, pore pressures and long-term seepage conditions. The data shall be accompanied by a description of all engineering design assumptions and calculations and the alternative considered in selecting the specific design specifications and methods. If rock toe buttresses or keyway cuts are required, the application shall include the number, location, and depth of borings or test pits which shall be determined with respect to the size of the spoil disposal structure and subsurface conditions, and engineering specifications used to design the rock toe buttress or keyway cuts which shall be determined in accordance with §AA(2) of this regulation. A detailed description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area, including: A map, profile, and appropriate cross sections, design drawings, and specifications for road widths, gradients, surfacing materials, cuts, fill embankments, culverts, bridges, drainage ditches, low-water crossings, and drainage structures; Drawings and specifications of each proposed road that is located in the channel of an intermittent or perennial stream, as necessary for approval of the road by the Bureau in accordance with COMAR 26.20.19; Drawings and specifications for each proposed ford of perennial or intermittent streams that is used as a temporary route, as necessary for approval of the ford by the Bureau in accordance with COMAR 26.20.19; A description of measures to be taken to obtain approval of the Bureau for alteration or relocation of a natural drainageway; Drawings and specifications for each low-water crossing of perennial or intermittent stream channels so that the Bureau can maximize the protection of the stream in accordance with COMAR 26.20.19; A description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert, for approval by the Bureau; and A description of the plans to remove and reclaim each road that will not be retained under an approved postmining land use, and the schedule for this removal and reclamation; and Design and certification of the plans and drawings for each primary road by a qualified registered professional engineer in accordance with COMAR 26.20.19.01F. A description of each support facility to be constructed, used, or maintained within the proposed permit area, including plans and drawings. The plans and drawings shall include a map, appropriate cross sections, design drawings, and specifications sufficient to demonstrate compliance with COMAR 26.20.19.08 and .09. The permit application shall contain a plan for reclamation of the lands within the proposed permit area, including: A detailed timetable for completion of each major step in the reclamation plan; A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond with supporting calculation for the estimates; A description of measures to be employed to dispose of debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard, and a description of the contingency plans which have been developed to preclude sustained combustion of these materials; A plan for backfilling, soil stabilization, compacting, grading, and controlling surface drainage following regrading, with contour maps or cross sections that show the existing slope and the anticipated final surface configuration of the proposed permit area, and a list of the backfilling equipment to be used in the operation; A plan for removal, storage, protection from erosion, and redistribution of topsoil, subsoil, and other materials; A plan for revegetation, including the: Schedule of revegetation, Method of seed bed preparation, Species and amounts per acre of seed and seedlings to be used, Rate of lime application, Analysis and rate of fertilizer application, Methods to be used in planting and seeding, Mulching techniques, type, and rate of application, Irrigation, if appropriate, and pest and disease control measures, if any, Measures proposed to be used to determine the success of revegetation, and A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation; A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area; and A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. §7401 et seq.), the Clean Water Act (33 U.S.C. §1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards. An application for an underground mining permit shall contain a survey which shall show whether structures or renewable resource lands exist within the proposed permit and adjacent area, and whether subsidence, if it occurred, could cause material damage or diminution of reasonably foreseeable use of these structures or renewable resource lands. The survey required by §A of this regulation shall contain: A map of the permit area and adjacent areas at a scale of 1:12,000, or larger, if determined necessary by the Bureau, showing the location and type of: Structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence; and Water supplies that could be contaminated, diminished, or interrupted by subsidence; A narrative indicating whether subsidence, if it occurs, could: Cause material damage to or diminish the value or reasonably foreseeable use of any structures or renewable resource lands; or Contaminate, diminish, or interrupt any water supplies; and A survey of the quantity and quality of all water supplies in the permit area and adjacent areas as required by COMAR 26.20.13.07E. If the survey under §§A and B of this regulation shows that no structures, water supplies, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of such structures or lands, or interruption of such water supplies would occur as a result of mine subsidence, and if the Bureau agrees with the conclusion, further information need not be provided in the application under this regulation. If the survey, under §§A and B of this regulation shows that structures or renewable resource lands, or water supplies exist, and that subsidence could cause material damage or diminution of the value or reasonably foreseeable use of such structures or lands, or contamination, diminution, or interruption of water supplies, or if the Bureau determines that the damage, diminution in value or foreseeable use, or contamination, diminution, or interruption could occur, the application shall contain a subsidence control plan in accordance with Regulation .16 of this chapter. A subsidence control plan, if required under Regulation .15 of this chapter, shall include: A detailed description of the mining method and other measures to be taken which may affect subsidence, including: The technique of coal removal, such as longwall mining, room and pillar with pillar removal, hydraulic mining, or other methods, including the size, sequence, and timing for the development of underground workings; A description of the physical conditions, such as depth of cover, seam thickness, and lithology, which affect the likelihood or extent of subsidence and subsidence-related damage; and A map of the underground workings which describes the location and extent of all areas when: Planned subsidence mining methods will be used, and Subsidence prevention or damage mitigation methods described in §B of this regulation will be used; A detailed description of the measures to be taken to prevent subsidence from causing material damage or lessening the value or reasonably foreseeable use of the surface, including: The anticipated effects of planned subsidence, if any; Measures, if any, to be taken in the mine to reduce the likelihood of subsidence, including such measures as: Backstowing or backfilling of voids, Leaving support pillars of coal, and Areas in which no coal removal is planned, including a description of the overlying area to be protected by leaving coal in place, Measures to be taken on the surface to prevent material damage or lessening of the value or reasonably foreseeable use of the surface including such measures as: Reinforcement of sensitive structures or features, Installation of footers designed to reduce damage caused by movement, Change of location of pipelines, utility lines, or other features, Relocation of movable improvements to sites outside the angle of draw, and Monitoring to determine the commencement and degree of subsidence so that other appropriate measures can be taken to prevent or reduce material damage; A detailed description of the measures to be taken to mitigate the effects of any material damage or diminution of value or foreseeable use of lands which may occur, including one or more of the following: Restoration or rehabilitation of structures and features, including approximate land-surface contours, to premining conditions; Replacement of structures destroyed by subsidence; Purchase of structures before mining and restoration of the land after subsidence to a condition capable of supporting and suitable for the structures and foreseeable land uses; Purchase of noncancellable insurance policies payable to the surface owner in the full amount of the possible material damage or other comparable measures; If required by the Bureau, a detailed description of measures to be taken to determine the degree of material damage or diminution of value of foreseeable use of the surface, including such measures as: Presubsidence surveys of all structures and surface features which might be materially damaged by subsidence; and Monitoring to measure deformations near specified structures or features or otherwise as appropriate for the operation; A description of the measures to be taken in accordance with COMAR 26.20.13.05 and COMAR 26.20.13.09: To replace adversely affected water supplies; or To mitigate or remedy any subsidence-related material damage to the land and protected structures; and Other information specified by the Bureau as necessary to demonstrate that the operation will be conducted in accordance with the performance standards of COMAR 26.20.13. A plan for the return of coal processing waste to abandoned underground workings, if applicable, shall include: A description of the design, operation, and maintenance of any proposed coal processing waste disposal facility, including: Flow diagrams, All necessary drawings and maps; A description of the source and quality of waste to be stowed, area to be backfilled, percent of the mine void to be filled, method of constructing underground retaining walls, influence of the backfilling operation on active underground mine operations, surface area to be supported by the backfill, and the anticipated occurrence of surface effects following backfilling; A description of the source of the hydraulic transport mediums, method of dewatering the placed backfill, retainment of water underground, treatment of water if released to surface streams, and the effect on the hydrologic regime; A description of the ground water monitoring program. All of the above requirements shall also apply to pneumatic backfilling operations, except where the operations are exempted by the regulatory authority from requirements specifying hydrologic monitoring. In addition to the applicable requirements of this chapter, an application for a deep mine permit shall also contain the following: An application fee of $200; Copies of other permits required by the Department in order to engage in the proposed operation; The names of the owners of the minerals to be removed, including reference to the deeds or leases whereby the mineral rights have been acquired, and copies of the documents, if requested by the Bureau; A map of the proposed underground portion of the affected area at a scale of 1 inch to 500 feet, unless a different scale is approved by the Bureau, which clearly identifies the following: The boundaries of the proposed affected area for which the applicant has the legal right to conduct underground coal mining operations, The number of acres in the affected area, including a breakdown of the acreage by property owner, The boundaries of surface properties and the names and addresses of the owners of the surface within the affected area and within 1,000 feet of the affected area, The location of active, plugged, or abandoned oil, gas, and water wells and springs within the proposed affected area and within 1,000 feet of the proposed affected area, including the names and addresses of the owners, The location of all known test borings, and The location and name, if known, of streams and other bodies of water, roads, railroads, public buildings, churches, cemeteries, and major fluid, gas, and utility transmission lines within the affected area and within 1,000 feet of the affected area; Cross sections above the underground workings depicting presubsidence and postsubsidence ground profiles, based on approved prediction methods and at locations specified by the Bureau; A geological structure map for the affected area and the adjacent areas specified by the Bureau at a scale of 500 feet to the inch, or smaller, which provides the following information: Structural contours at the base of the coal seam to be mined, The location of faults or fractures known to exist and, if required by the Bureau, the results of a fracture trace analysis, The outcrop of the coal seam to be mined, The strike and dip of the strata and the direction and amount of plunge of the regional structure, The axis of any regional structural feature which occurs within the limits of the map, The boundaries of any adjacent active or abandoned deep or surface mine areas; The results of laboratory analyses, if required by the Bureau, for both chemical and mechanical properties of strata overlying and underlying the coal seam to be mined; Information on adjacent active, inactive, or abandoned deep mines, including those in overlying or underlying coal seams, if available, describing the: Current condition of the mine, Approximate age of the mine, Type of mining which occurred, Existence and elevation of any mine pool, Rate and quality of discharge from known entries or outlets, and Existence and extent of any mine fires; A determination of the anticipated mining and postmining water quality and quantity based on hydrologic models and monitoring data from hydrologically comparable mines; and Other information requested by the Bureau. Environment Article, §§15-503 and 15-603, Annotated Code of Maryland Effective date: Regulations .01 and .02—.17 were previously codified as COMAR 08.13.09.02A—B and D—S, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .18 adopted effective February 13, 1995 (22:3 Md. R. 151) Chapter recodified from COMAR 08.20.02 to COMAR 26.20.02, June 1996 Regulation .01C and D adopted effective July 8, 2002 (29:13 Md. R. 993) Regulation .13 amended effective February 5, 2001 (28:2 Md. R. 105); March 14, 2005 (32:5 Md. R. 582) Regulation .13M amended effective July 8, 2002 (29:13 Md. R. 993) Regulation .15 amended effective March 14, 2005 (32:5 Md. R. 581) Regulation .16 amended effective March 14, 2005 (32:5 Md. R. 581) These requirements are in addition to the general requirements contained in COMAR 26.20.02. The requirements of this regulation apply to any person who conducts or intends to conduct surface coal mining and reclamation operations under a permit authorizing the use of alternative mining practices on an experimental basis, if the practices require a variance from the environmental protection performance standards of the Regulatory Program. The purpose of this regulation is to provide requirements for the permitting of surface coal mining and reclamation operations that encourage advances in mining and reclamation practices, or allow postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis. “Experimental practice” means the use of alternative surface coal mining and reclamation operation practices for experimental or research purposes. Experimental practices need not comply with specific environmental protection performance standards of the Regulatory Program, if approved pursuant to this regulation. A person may not engage in or maintain any experimental practice, unless that practice is first approved in a permit by the Bureau. The Bureau may not grant approval without first obtaining concurrence with appropriate officials of the federal Office of Surface Mining. Each person who desires to conduct an experimental practice shall submit a permit application for the approval of the Bureau. The permit application shall contain appropriate descriptions, maps, and plans which show: The nature of the experimental practice, including a description of the performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted; How use of the experimental practice: Encourages advances in mining and reclamation technology, or Allows a postmining land use for industrial, commercial, residential, or public use (including recreational facilities), on an experimental basis, when the results are not otherwise attainable under the approved Regulatory Program; That the mining and reclamation operations proposed for using an experimental practice are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice; That the experimental practice: Is potentially more, or at least as, environmentally protective during and after the proposed mining and reclamation operations as those practices normally required under the Regulatory Program, and Will not reduce the protection afforded public health and safety below that provided by the requirements of the Regulatory Program; That the applicant will conduct monitoring of the effects of the experimental practice during and after the operations involved. The monitoring program shall: Insure the collection, analysis, and reporting of sufficient and reliable data to enable the Bureau and the federal Office of Surface Mining to make adequate comparisons with other surface coal mining and reclamation operations employing similar experimental practices, Evaluate the effectiveness of the experimental practice, and Include requirements designed to identify, as soon as possible, potential risks to the environment and public health and safety from the use of the experimental practice. Each application shall set forth the environmental protection performance standards of the Regulatory Program which will be implemented, if the objective of the experimental practice is a failure. All experimental practices for which variances are sought shall be specifically identified through newspaper advertisements by the applicant and the written notifications by the Bureau under COMAR 26.20.04.02C. A permit authorizing an experimental practice may not be issued, unless the Bureau first finds, in writing, upon the basis of both a complete application filed in accordance with the requirements of this section, and the comments of the federal Office of Surface Mining, that: The experimental practice meets all of the requirements of §C of this regulation; The experimental practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved; The experimental practice has been specifically approved, in writing, by the federal Office of Surface Mining, based on a finding that all of the requirements of §C of this regulation will be met; and The permit contains conditions which specifically: Limit the experimental practice authorized to that granted by the Bureau and the federal Office of Surface Mining, Impose enforceable alternative environmental protection requirements, and Require the permittee to conduct the periodic monitoring, recording, and reporting program set forth in the application, with such additional requirements as the Bureau or the federal Office of Surface Mining may require. Experimental practices granting variances from the special environmental protection performance standards applicable to prime farmlands shall be approved only after consultation with the U.S. Department of Agriculture, Soil Conservation Service. Each experimental practice shall be reviewed by the Bureau at a frequency set forth in the approved permit, but not less frequently than every 2-1/2 years. After the annual review of any permit which authorizes the use of an experimental practice, the Bureau, with the consent of the federal Office of Surface Mining, shall require by order, supported by written findings, any reasonable revision or modification of the permit provisions necessary to ensure that the operations involved are conducted to protect fully the environment and public health and safety. Any person who is or may be adversely affected by the order shall be provided with an opportunity for a hearing. Revisions or modifications to an experimental practice shall be processed in accordance with COMAR 26.20.07 and approved by the Bureau. Any revisions which propose significant alterations in the experimental practice shall, at a minimum, be subject to the notice, hearing, and public participation requirements of COMAR 26.20.04 and the concurrence of the federal Office of Surface Mining. This regulation applies to any person who conducts or intends to conduct surface mining activities by mountaintop removal mining. “Mountaintop removal mining” means surface mining activities where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except where an outcrop barrier, consisting of the lowest coal seam and its associated overburden, is required to be retained by the Bureau) by removing substantially all of the overburden off the bench, and creating a level plateau or a gently rolling contour, with no highwalls remaining, and which is capable of supporting postmining land uses in accordance with the requirements of this regulation. The Bureau will not issue a permit for mountaintop removal mining, unless it first finds, in writing, that the following requirements are met: The proposed postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use, and, if after consultation with the appropriate land-use planning agencies, the proposed land use is deemed to constitute an equal or better economic or public use of the affected land compared with the pre-mining use, then: The applicant demonstrates compliance with the requirement for acceptable alternative postmining land uses, The proposed use would be compatible with adjacent land uses and existing State and local land use plans and programs, and The Bureau has provided, in writing, an opportunity of not more than 60 days to review and comment on the proposed use, to the commissioners of the county in whose jurisdiction the land is located and any State or federal agencies which have any interest in the proposed use; The applicant has demonstrated that, in place of restoration of the land to be affected to the approximate original contour, the operation will be conducted in compliance with the special performance standards of COMAR 26.20.24.03 for mountaintop removal, and these requirements are made a specific condition of the permit; The proposed operations will meet all other requirements of the Regulatory Program; The permit is clearly identified as being for mountaintop removal mining. Any permits incorporating a variance issued under this regulation shall be reviewed annually, and before permit renewal, to establish that the operator is proceeding in accordance with the terms of the variance, unless the permittee has demonstrated and the Bureau found in writing, within 3 months before the scheduled review, that all operations under the permit are proceeding and will continue to be conducted in accordance with the terms of the permit and requirements of the Regulatory Program. The terms and conditions of a permit for mountaintop removal mining may be modified at any time by the Bureau, if it determines that more stringent measures are necessary to insure that the operation involved is conducted in compliance with the requirements of the Regulatory Program. This regulation applies to any person who conducts or intends to conduct steep slope surface coal mining and reclamation operations. “Steep slope” means any slope of 20 degrees or more. This regulation does not apply to operations on predominantly flat or gently rolling terrain, but on which an occasional steep slope is encountered as the mining operation proceeds. The Bureau will not issue a permit for surface mining activities on slopes of 20 degrees or more unless the application contains sufficient information to demonstrate that the following requirements will be met: The mining operation will be conducted on lands containing a previously orphaned surface or deep mining operation; The Land Reclamation Committee finds that the land can be restored to its original contour; and The Bureau finds, in writing, that in addition to meeting all other requirements of the Regulatory Program, the operation will be conducted in accordance with the requirements for operations on steep slopes, as contained in COMAR 26.20.24.04. This regulation applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmland historically used for cropland. Nothing in this regulation applies to any permit issued before August 3, 1977, or to any revisions or renewals of it, or to any existing surface mining operations for which a permit was issued before August 3, 1977. All permit applications shall include the results of a reconnaissance inspection of the proposed permit area to indicate whether prime farmland exists. The Bureau in consultation with the U.S. Soil Conservation Service shall determine the nature and extent of the reconnaissance inspection. If the reconnaissance inspection establishes that land not within the proposed permit area may be prime farmland historically used for cropland, the applicant shall submit a statement that no prime farmland is present. The statement shall identify the basis upon which such a conclusion was reached. If the reconnaissance inspection indicates that land within the proposed permit area may be prime farmland historically used for cropland, the applicant shall determine if a soil survey exists for those lands and whether soil mapping units in the proposed permit area have been designated as prime farmland. If a soil survey does not exist, the applicant shall have a soil survey made of the lands within the proposed permit area which the reconnaissance inspection indicates could be prime farmland. Soil surveys of the detail used by the U.S. Soil Conservation Service for operational conservation planning shall be used to identify and locate prime farmland. If the soil survey indicates that prime farmland soils are: Not present within the proposed permit area, §C of this regulation shall apply; or Present within the proposed permit area, §E of this regulation shall apply. If land within the proposed permit area is identified as prime farmland, the applicant shall submit a plan for the mining and restoration of the land. Each plan shall contain, at a minimum: A soil survey of all prime farmland within the permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures set forth in the U.S. Department of Agriculture (USDA) Handbook 436 (Soil Taxonomy, 1975), as amended on March 22, 1982 and October 5, 1982 and Handbook 18 (Soil Survey Manual, 1951, as amended on December 18, 1979, May 7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, and November 16, 1982). The U.S. Soil Conservation Service establishes the standards of the National Cooperative Soil Survey and maintains a National Soils Handbook which gives current acceptable procedures for conducting soil surveys. This National Soils Handbook is available for review at area and State SCS offices. The soil survey shall include a map unit and representative soil profile description for each prime farmland soil within the permit area, including, but not limited to, soil-horizon depths, pH, and the range of soil densities for each prime farmland soil unit within the permit area. Other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, may be used if their use is approved by the Bureau. The regulatory authority may request the operator to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of COMAR 26.20.24.02. The proposed method and type of equipment to be used for removal, storage, and replacement of the soil. Identification of the procedures to be used to avoid excessive compaction during replacement of the soil. The location of areas to be used for the separate stockpiling of the soil, and plans for soil stabilization before redistribution. If applicable, documentation, such as agricultural school studies or other scientific data from comparable areas, that supports the use of other suitable material, instead of the “A”, “B”, or “C” soil horizon, to obtain equivalent or higher levels of yield on the restored area as on non-mined prime farmlands in the surrounding area under equivalent levels of management. The conservation practices to be used, to adequately control erosion and sedimentation and restoration of an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond. Proper adjustments for seasons shall be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions. Available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after mining as existed before mining. Current estimated yields under a high level of management for each soil map unit from the USDA for each crop to be used in determining success of revegetation. These yield estimates shall be used by the Bureau as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Bureau in consultation with the USDA before approval of the permit application. In all cases, soil productivity for prime farmland shall be returned to equivalent levels of yield as non-mined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to §G(1) and (2) of this regulation. Editor's Note: The National Soils Handbook, which is incorporated by reference, can be found in State Soil Conservation Service offices located in each of the 23 counties of Maryland. Before any permit is issued for areas that include prime farmlands, the Bureau shall consult with the USDA, which shall provide for review and comment of the proposed methods of soil reconstruction in the plan submitted under §G of this regulation. If the USDA considers those methods to be inadequate, it shall suggest revisions resulting in more complete and adequate reconstruction. USDA responsibilities under this section are assigned to the Administrator of the U.S. Soil Conservation Service. A permit for the mining and reclamation of prime farmland will not be granted by the Bureau, unless it first finds the following, in writing, upon the basis of a complete application: The approved proposed postmining land use of these prime farmlands will be cropland; The permit incorporates, as specific conditions, the contents of the plan submitted under §G of this regulation, after consideration of any revisions to that plan suggested under §H of this regulation by the USDA; The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as non-mined prime farmland in the surrounding area under equivalent levels of management; and The proposed operations will be conducted in compliance with the requirements of COMAR 26.20.24.02 for operations on prime farmland, and other environmental protection performance and reclamation standards for mining and reclamation of prime farmland of the Regulatory Program; The aggregate total prime farmland acreage may not be decreased from that which existed prior to mining; Water bodies, if any, to be constructed during mining and reclamation operations shall be located within the postreclamation nonprime farmland portions of the permit area; and The creation of any such water bodies shall be approved by the Bureau and the consent of all affected property owners within the permit area shall be obtained. This regulation applies to any person who conducts or intends to conduct combined surface mining activities and underground mining activities, where contemporaneous reclamation is not practicable and a delay is requested to allow underground mining activities to be conducted before the reclamation operation for the surface mining activities can be completed. In general, delay in reclamation of surface mining activities will be permitted, if that delay will allow underground mining activities to be conducted to ensure both maximum practical recovery of coal resources and to avoid multiple future disturbances of surface land or waters. Any person who desires to obtain a variance under this regulation shall file with the Bureau complete applications for both the surface mining activities and underground mining activities which are to be combined. The mining and reclamation operation plans for these permits shall contain appropriate narratives, maps, and plans, which: Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of coal; Show how multiple future disturbances of surface lands or waters will be avoided; Identify the specific surface areas for which a variance is sought and the particular section of the Regulatory Program from which a variance is being sought; Show how the activities will comply with the requirements under COMAR 26.20.24.07 for concurrent surface and underground mining and other applicable requirements of the Regulatory Program; Show why the variance sought is necessary for the implementation of the proposed underground mining activities; Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of surface mining activities is delayed; and Show how off-site storage of spoil will be conducted. The Bureau will not issue a permit incorporating a variance under this regulation unless it first finds, in writing, that: The applicant has presented specific, feasible plans for the proposed underground mining activities; The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resources and will avoid multiple future disturbances of surface land or waters; The applications for the surface mining activities and underground mining activities conform to the requirements of the Regulatory Program and all other permits necessary for the underground mining activities have been issued by the appropriate authority; The area of surface mining activities proposed for the variance are necessary for implementing the proposed underground mining activities; No substantial adverse environmental damage, either on-site or off-site, will result from the delay in completion of reclamation otherwise required by the Regulatory Program; The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of COMAR 26.20.24.07 for concurrent surface and underground mining and the Regulatory Program; Provisions for off-site storage of spoil will comply with the requirements of the Regulatory Program; Liability under the performance bond required to be filed by the applicant shall be for the duration of the underground mining activities and until all requirements of the Regulatory Program have been complied with; and The permit for the surface mining activities: Delineates the particular surface areas for which a variance is authorized, Identifies the particular requirements for concurrent surface and underground mining which are to be complied with instead of the otherwise applicable provisions of the Regulatory Program, and a detailed schedule for compliance with those particular requirements. Variances granted under this regulation shall be reviewed annually by the Bureau. Any application for a permit for augering operations shall contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with the requirements of COMAR 26.20.24.01 for auger mining. A permit may not be issued for an augering operation unless the Bureau finds, in writing, that the operation: Meets all other requirements of this subtitle; and Will be conducted in compliance with COMAR 26.20.24.01. Regulations .08 and .09 of this chapter apply to any person who conducts or intends to conduct surface coal mining and reclamation operations using coal preparation plants and associated facilities not otherwise within a permit area of a mine. Any such person shall obtain a permit from the Bureau under the Regulatory Program in accordance with the requirements of this regulation. Any application for a permit for operations covered by this regulation and Regulation .09 of this chapter shall contain in the mining and reclamation plan, specific plans, including descriptions, maps, and cross sections of the construction, operation, maintenance, and removal of the preparation plants and associated facilities. The Bureau will not issue a permit for any operation covered by this regulation, unless it finds, in writing, that, in addition to meeting all other applicable application requirements, the operations will be conducted in compliance with the requirements of COMAR 26.20.24.05. A person may not operate a coal preparation plant within the State without first obtaining a permit from the Bureau and any other permits or approvals required by law, except that a person operating a coal preparation plant on the effective date of this regulation who was not previously regulated under the Regulatory Program may continue to conduct that operation until 8 months from the effective date of this regulation if an application for a permit has been made to the Bureau in accordance with §F of this regulation and Regulation .09 of this chapter. Except as provided in this regulation, on and after 8 months from the effective date of this regulation a person may not operate a coal preparation plant unless that person has first obtained a permit issued by the Bureau pursuant to the Regulatory Program, and that person complies with the terms and conditions of the permit and the requirements of the Regulatory Program. However, a person who is operating a coal preparation plant without a permit on the effective date of this regulation may continue to operate that plant after 8 months from the effective date of this regulation, if: The plant was not regulated under the Regulatory Program before the effective date of this regulation; A timely application has been made to the Bureau in accordance with the schedules in Regulation .09 of this chapter; and The Bureau has not rendered a decision to issue or deny the permit. A timely application pursuant to Regulation .08F of this chapter shall consist of filing of an application in accordance with the following schedules: Within 2 months of the effective date of this regulation the following shall be submitted to the Bureau: Module I and Module II of the application for mining operations. A map at a scale of 500 feet to the inch, or larger. The map shall identify: The boundaries of surface properties within the permit area and within 1,000 feet of the permit area, and the names of the owners of the surface properties within the permit area and within 1,000 feet of the permit area; The boundaries of the proposed permit area upon which the applicant has the legal right to enter and conduct surface mining operations, and the boundaries of all existing contiguous permits; The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings; The location of surface and subsurface man-made features within, passing through, or passing over the proposed permit area, including but not limited to major electric transmission lines, pipelines, and agricultural drainage tile fields; Each public road located on or within 1,000 feet of the proposed permit area; Each public or private cemetery or Indian burial ground located on or within 100 feet of the proposed permit area; The location of surface water bodies such as streams, creeks, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas; The boundaries of any public park, forest or wildlife management area, the locations of any cultural or historic resources listed in the National Register of Historic Places, and the locations of any known archaeological sites within the permit area or adjacent areas; The distance from the permit area to the nearest structure and to any structure, dwelling, or physical feature, or all of these, where mining is prohibited, unless a waiver or exemption is obtained; The location of monitoring stations used to gather water quality and quantity data in preparation of the application. Within 4 months of the effective date of this regulation, the following shall be submitted to the Bureau: Module III and Module IV of the application for mining operations; A mining plan map; and Other information required to complete an application under the Regulatory Program. The application shall be submitted in accordance with COMAR 26.20.04. This regulation applies to any person who conducts or intends to conduct surface coal mining and reclamation operations using in situ processing activities. Any application for a permit for operations covered by this regulation shall be made according to all requirements applicable to underground mining activities. In addition, the mining and reclamation operations plan for operations involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of COMAR 26.20.24.06, including: Delineation of proposed holes and wells and production zone; Specifications of drill holes and casings proposed to be used; A plan for treatment, confinement, or disposal of all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard caused by the mining and recovery process; and Plans for monitoring surface and ground water and air quality. The Bureau will not issue a permit for operations covered by this regulation, unless it first finds, in writing, that the operation will be conducted in compliance with all application requirements relating to underground mining activities, the Regulatory Program performance standards for underground mining activities, and COMAR 26.20.24.06. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01 and .02—.10 were previously codified as COMAR 08.13.09.03 Introduction and A—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.03 to COMAR 26.20.03, June 1996 Regulation .05I amended effective July 8, 2002 (29:13 Md. R. 993) Regulation .07 amended effective May 8, 2006 (33:9 Md. R. 797) A person seeking an open-pit mining permit shall simultaneously submit to the Bureau: An original and three complete copies of an application containing all information required by COMAR 26.20.02, and applicable portions of COMAR 26.20.03. The application shall be submitted on forms provided by the Bureau, with any provision considered to be inapplicable being clearly identified as such. A copy of an application for the National Pollutant Discharge Elimination System (NPDES) permit and any other permits required in order to engage in the proposed operation. Within 10 days of receipt of a permit application, the Bureau shall conduct a preliminary review for completeness. If it is determined that necessary information is not included, the Bureau shall return the application, with notification as to its deficiencies, and take no further action regarding the permit request. If it is determined immediately that the requested permit cannot be issued, the Bureau shall so notify the applicant in accordance with the provisions of Regulation .12 of this chapter. When the Bureau determines that an application is complete, the Bureau shall: Notify the applicant in writing that the application is complete, and that the applicant shall advertise in a newspaper as required by Regulation .03 of this chapter, and file a copy of the application for public inspection as required by Regulation .04 of this chapter; Forward copies of the application to the agency responsible for issuing the National Pollutant Discharge Elimination System permit and the soil conservation district in which the proposed operation is located, and provide these agencies an opportunity for a technical on-site evaluation within 2 weeks; and Issue written notification of receipt of a complete application to: Local government agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to the county commissioners, county planning and zoning agency, sewage and water treatment authorities, and Federal or State government agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and those agencies with an interest in the proposed operation, including the U.S.D.A. Soil Conservation Service, the U.S. Army Corps of Engineers, the National Park Service, State and federal fish and wildlife agencies, the State Archeologist, and the Maryland Historical Trust. Notwithstanding the notification under §C(1) of this regulation, the applicant is required to immediately submit any information which is later determined by the Bureau to be necessary for continued processing and evaluation of the application. The notifications required by §C(3) of this regulation include: A statement that the Bureau has received an application to surface mine a particularly described tract of land; The name of the applicant, and any identifying number assigned to the application; The location where a complete copy of the application may be inspected; The address where written comments, objections, or a request for a hearing may be submitted on the application; and The deadline for submission of comments, objections, or a request for a hearing. Upon receipt of Bureau notification that an application is complete, the applicant shall cause an advertisement to appear, at least once a week for 4 consecutive weeks, in a local newspaper of general circulation in the county where the operation will be located. The advertisement shall contain, at a minimum, the following information: A heading of “Notice of Application for Strip Mine Permit” in boldface type; The name and business address of the applicant; A map or description which: Clearly shows or describes towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area, Clearly shows or describes the exact location and boundaries of the proposed permit area, States the name of the U.S. Geological Survey 7.5-minute quadrangle map or maps which contain the area shown or described, and If a map is used, indicates the north point; The location where a copy of the application is available for public inspection; The name and address of the Bureau and a statement that written comments, objections, or a request for a hearing on the application may be submitted to the Bureau within 30 days from the date of the last advertisement; and If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate a public road, a concise statement describing the public road, the particular part to be relocated, where the relocation is to occur, and the duration of the relocation. The applicant shall ensure that a complete copy of the application is available to the general public, for inspection and copying, by the date of the first advertisement under Regulation .03 of this chapter. This requirement shall be satisfied by filing a copy at the courthouse of the county where the mining is proposed to occur or, with the concurrence of the Bureau, at another public office more accessible to local residents. The applicant shall file any subsequent revision of the application with the public office at the same time the revision is submitted to the Bureau. Information requested to be held as confidential may not be made publicly available until after notice and opportunity to be heard is given persons both seeking and opposing disclosure of the information. All qualified confidential information shall be identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to information: That pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of the coal which are potentially toxic in the environment; That is not on file under State law and that the applicant has requested in writing to be held confidential; and On the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (P.L. 96-95, 93 Stat. 721, 16 U.S.C. §470). Within 30 days from the last advertisement under Regulation .03 of this chapter, the Bureau shall receive and consider written comments, objections, and requests for a hearing on the application from any party directly notified under this regulation, an officer or head of any federal, State, or local government agency or authority, or any person having an interest which may be adversely affected by issuance of the requested permit. Upon receipt of any written comment, objection, or request for a hearing, the Bureau shall immediately transmit a copy to the applicant, and to the public office where a copy of the application is filed pursuant to Regulation .04 of this chapter. A person who files a written request for a hearing may include a request to be granted access to the proposed permit area for the purpose of gathering information relevant to the hearing under Regulation .10 of this chapter. The request shall briefly summarize the nature of the information sought, and the expected amount of time required. If the Bureau determines that there is a reasonable basis for believing that the requested inspection will lead to relevant information not otherwise contained in the application, it shall so notify the requestor and the applicant. The applicant shall arrange and conduct the inspection as expeditiously as possible. The Bureau shall conduct a detailed review of the application and all other factors relevant to a determination as to whether the requested permit may be issued within the requirements of the Regulatory Program. The Bureau shall notify the applicant of any substantial problems regarding the permit request, and provide an opportunity for the applicant to respond to these problems, to supplement the application, or to remedy any defects discovered during the detailed review. The applicant for a permit or a revision of a permit has the burden of establishing that the application is in compliance with all the requirements of the Regulatory Program. If the Bureau determines that there is no reasonable possibility for the requested permit to be issued within the requirements of the Regulatory Program, the Bureau may immediately terminate its review of the application, and proceed in accordance with the provisions of Regulation .12 of this chapter for denial of the permit. If the Bureau determines that the requested permit may be available under the Regulatory Program, and the applicant has satisfactorily responded to any comments noted by the Bureau, or any public comment or objection, then the Bureau shall require eight copies of the complete application from the applicant, including proof of publication of the advertisement required under Regulation .03 of this chapter. If a request for a public hearing is received under Regulation .05 of this chapter, the Bureau shall schedule a hearing in the locality of the proposed operation. The Bureau shall provide notice of the public hearing by: Notifying the applicant and any person who requested a hearing of the date, time, and location of the hearing; and Publishing the date, time, and location of the hearing in a newspaper of general circulation in the area of the proposed operation. The notice under §B of this regulation shall contain the heading “Notice of Public Hearing on Strip Mine Permit Application” in bold-face type, and information sufficient to identify the particular permit application. The notice shall be published at least 15 but not more than 60 days before the date of the hearing. The public hearing shall be legislative in nature. The rules of evidence do not apply and cross-examination is not permitted. Anyone wishing to speak on the application will be heard. However, the presiding officer may limit the time allowed for oral presentations, or restrict repetitive or irrelevant discussion, in order to ensure an orderly and expeditious hearing. Written statements will be accepted. The applicant shall be present at the hearing and prepared to answer any question regarding the pending application. The Bureau shall make available an employee familiar with the application and its review by the Bureau. Unless waived by all parties, an electronic or stenographic verbatim record shall be made of the hearing proceeding. A party to the hearing may, at the party's expense, obtain a verbatim transcript. The record shall be maintained and shall be accessible to the public until final release of the applicant's performance bond or other equivalent guarantee. In all cases, the Bureau shall prepare an abbreviated transcript of the hearing which will be available to the public. The Presiding Officer may direct that public comment on the application be taken at each individual step in the proceeding, or simultaneously on all aspects of the permit request. The Bureau shall complete its review of the application and render a decision to approve or deny the permit application in accordance with the provisions of COMAR 26.20.05. Based on available information concerning federal and State failure-to-abate cessation orders, unabated federal and State imminent harm cessation orders, delinquent civil penalties issued under §518 of the federal Surface Mining Control and Reclamation Act of 1977, bond forfeitures, delinquent abandoned mine reclamation fees, and unabated violations of federal and State laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the Bureau may not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any other law, rule, or regulation referred to in this section. In the absence of a failure-to-abate cessation order, the Bureau may presume that a notice of violation issued under the Regulatory Program or under a federal or State program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except when evidence to the contrary is set forth in the application, or when the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists under §B of this regulation, the Bureau shall require the applicant or any person who owns or controls the applicant, before issuance of the permit, to submit to the Bureau proof that the: Current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or Applicant or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review affirms the violation, then the applicant shall submit the proof required under §C(1) of this regulation within 30 days of the judicial action. If the Bureau issues any permit on the basis of proof submitted under §C of this regulation, the permit shall be conditionally issued. The Bureau may not issue the permit if it makes a determination that the applicant, anyone who owns or controls the applicant, or the operator specified in the application controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the nature and duration, and with resulting irreparable damage to the environment, to indicate an intent not to comply with the provisions of the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any State program for the regulation of surface coal mining and reclamation operations approved by the Secretary of the Interior under the federal Surface Mining Control and Reclamation Act of 1977. The applicant or the operator shall be given an opportunity for an adjudicatory hearing on the determination as provided in COMAR 26.20.06. If the Bureau approves the permit application, it shall proceed in accordance with the provisions of Regulation .11 of this chapter. If the Bureau denies the permit application, it shall proceed in accordance with the provisions of Regulation .12 of this chapter. If the Bureau decides to approve a permit application under this regulation, the Bureau shall notify the applicant, each person who filed written comments or objections to the permit application, and each party to a hearing, in writing, of its approval of the permit application. The notice to the applicant shall also contain: Any special conditions which the Bureau has determined to impose on the permit beyond the normal requirements of the Regulatory Program; A requirement for the applicant to update, correct, or indicate that no change has occurred in the information previously submitted in the application in accordance with COMAR 26.20.02.03A—F and I—K; and A time limit within which the applicant shall submit to the Bureau all fees and bonds required under the Regulatory Program. Before issuing the permit, the Bureau shall reconsider its decision to approve the application based on the review required by Regulation .10B and C of this chapter in light of any new information submitted under §A(2) of this regulation. If the compliance review under §B of this regulation does not require the Bureau to change its decision to approve the application, the permit shall be issued by the Bureau within 15 days of the Bureau's receipt of all required bonds and fees. When the permit is issued, the Bureau shall provide written notification of the issuance to the federal Office of Surface Mining. Within 10 days of the issuance of the permit, the Bureau shall notify the local government officials in the area of the land to be affected that a permit has been issued, and shall describe the location of the permit area. If the Bureau decides to deny a permit application under this regulation, the Bureau shall notify the applicant of the denial, in writing and by certified mail. The notice shall set forth: A detailed description of the reasons for denial; A statement that no further processing shall occur; A statement that the applicant may, within 30 days of the date of the notice, request an adjudicatory hearing on the reasons for denial. Within 10 days of its decision to deny a permit application, the Bureau shall send a notice of the permit denial to: A person who filed a written comment or objection or who was party to a hearing on the permit application, stating that anyone whose interests are or may be adversely affected by the decision may request an adjudicatory hearing on the denial by notifying the Bureau in writing within 30 days of the date of the notice; The local government officials in the area of the land to be affected, including a description of the land; and The Office of Surface Mining. Within 30 days after the applicant is notified of the decision of the Bureau concerning the application for a permit in accordance with Regulation .11 or .12 of this chapter, the applicant or any person with an interest which is or may be adversely affected may request an adjudicatory hearing on the reasons for the final decision in accordance with COMAR 26.20.06. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.07 and .08—.13 were previously codified as COMAR 08.13.09.04A—G and H—M, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .02 amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .03B amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .07 amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .08A amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .08B amended effective October 23, 1995 (22:21 Md. R. 1614) Regulation .09 repealed effective March 14, 1994 (21:5 Md. R. 403) Regulation .10A, G, H amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .11 amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .12 amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .13 amended effective March 14, 1994 (21:5 Md. R. 403) Chapter recodified from COMAR 08.20.04 to COMAR 26.20.04, June 1996 A permit application or application for a significant revision of a permit may not be approved unless the application affirmatively demonstrates and the Bureau finds, in writing, on the basis of information set forth in the application, or information otherwise available and documented in the approval under COMAR 26.20.04.11A, the following: The permit application is complete and accurate and the applicant has complied with all requirements of the Regulatory Program; The applicant has demonstrated that reclamation operations as required by the Regulatory Program can be feasibly accomplished under the reclamation plan contained in the application; The Bureau has made an assessment of the probable cumulative impacts of all anticipated coal mining in the cumulative impact area on the hydrologic balance and has determined that the operations proposed under the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area; The proposed permit area is: Not included within an area designated unsuitable, or an area where surface coal mining is prohibited under the federal or State Regulatory Program, Not within an area under study for designation as unsuitable for surface coal mining operations, in an administrative proceeding that has been initiated under COMAR 26.20.11, unless the applicant demonstrates that, before January 4, 1977, substantial legal and financial commitments were made in relation to the proposed operation, and Not within an area where surface coal mining is limited under COMAR 26.20.10 unless prerequisites for Bureau approval have been satisfied; The proposed operations will not adversely affect any publicly owned parks, or places included in the National Register of Historic Places, unless approved by the appropriate jurisdictional agency; The applicant has demonstrated that any existing structure will comply with the requirements of COMAR 26.20.17; The applicant has submitted documentation establishing a legal right to enter and conduct the proposed surface mining activities; The applicant has paid all federal and State reclamation fees; The applicant has satisfied the applicable requirements of COMAR 26.20.03; The applicant has, if applicable, satisfied the requirements for approval of a long-term intensive agricultural postmining land use, in accordance with COMAR 26.20.29.01D; and The activities would not affect the continued existence of endangered or threatened species, or result in the destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act. A permit shall be issued for a fixed term not to exceed 5 years, unless the applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing of equipment and the opening of the operation, and this need is confirmed, in writing, by the applicant's proposed source for the financing. A permit shall terminate if the permittee has not begun the surface coal mining and reclamation covered by the permit within 3 years of the issuance of the permit. The Bureau may grant reasonable extensions of time for commencement of operations, upon receipt of a written statement showing that these extensions of time are necessary, due to litigation which precludes the commencement or threatens substantial economic loss to the permittee or other conditions beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time construction of the facility is initiated. Extensions of time granted by the Bureau under this section shall be specifically set forth in the permit and notice of the extension shall be made to the public. Each permit shall contain the following express terms and conditions: The permittee shall conduct all activities under the permit in accordance with the description contained in the application, and only on those lands specifically designated in the permit and which are subject to the performance bond or other equivalent guarantee. The permittee shall allow the authorized representatives of the Bureau and the federal Office of Surface Mining, without advance notice or search warrant, at reasonable times, upon presentation of appropriate credentials, and without delay, to enter and inspect any monitoring equipment or method of exploration or operation, to have access to and copy any records required under the Regulatory Program or the permit, and to be accompanied by private persons for the purpose of conducting an inspection when the inspection is in response to an alleged violation reported by the private person. The permittee shall take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with any term or condition of the permit, including but not limited to: Any accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of noncompliance; Immediate implementation of measures necessary to comply; and Warning, as soon as possible after learning of the noncompliance, any person whose health and safety is in imminent danger due to the noncompliance. The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner required by the Regulatory Program, and which prevents violation of any other applicable State and federal law. The permittee shall conduct its operations: In accordance with any measures specified in the permit as necessary to prevent significant, imminent environmental harm to the health or safety of the public; and Using any methods specified in the permit in the course of approving alternative methods of compliance with the performance standards of the Regulatory Program, in accordance with the provisions of the Regulatory Program. The permittee shall submit a written notice to the Bureau whenever a temporary cessation of mining activities occurs for more than 30 days, or as soon as it is known that a temporary cessation will extend beyond 6 months. This notice shall include a statement of the exact number of acres which will have been affected in the permit area before the temporary cessation; the extent and kind of reclamation of those areas which will have been accomplished; and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities which will continue during the temporary cessation. If operations are permanently terminated, the permittee shall close or backfill or otherwise permanently reclaim all affected areas, in accordance with the permit approved by the Bureau. All underground openings, equipment, structures, or other facilities not required for monitoring, unless approved by the Bureau as suitable for the postmining land use or environmental monitoring, shall be removed and the affected land reclaimed. The permittee shall ensure the right of the Bureau to enter on and inspect, without a warrant or advance notice, any area outside of the permit area where monitoring, record keeping, or other activity related to the permit is taking place. Within 30 days after a cessation order is issued for a violation which creates an imminent danger to the health or safety of the public, or causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, or for failure to abate a violation within the time limits set in the order for operations conducted under the permit, except when a stay of the cessation order is granted and remains in effect, the permittee shall either notify the Bureau in writing that there has been no change since the immediately preceding submittal of this information, or submit to the Bureau, current to the date the cessation order was issued, the following information: Any new information needed to correct or update the information previously submitted to the Bureau under COMAR 26.20.02.03D, including the date of departure from the position, if applicable; or If not previously submitted, the information required from a permit applicant under COMAR 26.20.02.03D. The permittee shall pay all reclamation fees as required by the federal Office of Surface Mining, for coal produced under the permit for sale, transfer, or use. The permittee shall pay all fees and mine reclamation surcharges as required by Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland. If the Bureau has reason to believe that it improvidently issued a surface coal mining and reclamation permit, it shall review the circumstances under which the permit was issued, using the criteria in §B of this regulation. If the Bureau finds that the permit was improvidently issued, it shall comply with §C of this regulation. The Bureau shall find that a surface coal mining and reclamation permit was improvidently issued if: Under the violations review criteria of the Regulatory Program at the time the permit was issued, the: Bureau should not have issued the permit because of an unabated violation or a delinquent penalty or fee, or Permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued; The violation, penalty, or fee: Remains unabated or delinquent, and Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and When the permittee was linked to the violation, penalty, or fee, through ownership or control, under the violations review criteria of the Regulatory Program at the time the permit was issued: An ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or If the link was severed, the permittee continues to be responsible for the violation, penalty, or fee. If the Bureau, under §B of this regulation, finds that a permit was improvidently issued, the Bureau shall use one or more of the following remedial measures: Implement, with the cooperation of the permittee or other person responsible, and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee; Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee; Suspend the permit until the violation is abated or the penalty or fee is paid; or Rescind the permit under Regulation .05 of this chapter. If the Bureau, under Regulation .04C(4) of this chapter, elects to rescind an improvidently issued permit, the Bureau shall serve on the permittee a notice of proposed suspension and rescission which includes the reasons for the finding under Regulation .04B of this chapter and states that: After a specified period of time not to exceed 90 days the permit automatically will be suspended, and, not to exceed 90 days after that, will be rescinded, unless within those periods the permittee submits proof and the Bureau finds that: The finding of the Bureau was erroneous. The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency, The violation, penalty, or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency, or Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and will not continue to be responsible for, the violation, penalty, or fee; After permit suspension or rescission, the permittee shall cease all surface coal mining and reclamation operations under the permit, except for violation abatement and for reclamation and other environmental protection measures as required by the Bureau; and The permittee may file an appeal for administrative review of the notice in accordance with COMAR 26.20.06. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01, .02A, B, and .03—.05 were previously codified as COMAR 08.13.09.05A, B, C, and D—F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .01 amended effective March 14, 1994 (21:5 Md. R. 403) Regulation .03J, K adopted effective March 14, 1994 (21:5 Md. R. 403) Chapter recodified from COMAR 08.20.05 to COMAR 26.20.05, June 1996 Regulation .01 amended effective May 8, 2006 (33:9 Md. R. 797) This regulation sets out specific provisions for adjudicatory hearings on decisions to deny or approve a permit application. General provisions regarding adjudicatory hearings under the Regulatory Program are contained in COMAR 26.20.34. In order to satisfy any time requirement for requesting an adjudicatory hearing under this chapter, a person need only inform the Bureau, in writing, of his intent to request a hearing. The Bureau shall acknowledge receipt of the request, and notify the requestor that the following information must be submitted, in writing, within 10 days of the date of the notice: Full name and address of the person requesting the hearing and a telephone number where they can be reached during normal business hours; The name, address, and telephone number of any attorney representing the requestor or a statement that he intends to represent himself; A detailed description of the grounds for the request, including the interests of the requestor which are or may be adversely affected by the decision of the Bureau; A statement of the specific relief desired as a result of the adjudicatory hearing; A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses expected to be called by the requestor. An adjudicatory hearing will be held within 30 days of receipt of the above information. The Bureau shall notify the applicant and requestor, and any other interested party, of the hearing date, time, and location. The Secretary of the Environment shall designate a hearing officer to preside at adjudicatory hearings under this chapter. However, in the case where a public hearing has been held under COMAR 26.20.04, no person who presided at that hearing may either preside at an adjudicatory hearing under this chapter, or participate in the decision or in any administrative appeal from it. The person requesting an adjudicatory hearing shall have the burden of proof on all aspects of the requested relief. The hearing officer may grant temporary relief, as deemed appropriate pending final determination of the proceeding, provided that: All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief; The person requesting temporary relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; The relief will not adversely affect the public health or safety, or cause significant imminent environmental harm to land, air, or water resources; and The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Bureau. The Secretary shall render a final decision within 30 days of the close of the hearing record pursuant to COMAR 26.20.34, and shall notify all parties, in writing, of the decision and the reasons for it. Any applicant or any person with an interest which is or may be adversely affected, who has participated in administrative proceedings under this chapter as an objector, and who is aggrieved by a decision of the Department, or if the Department fails to act within a time limit specified in this subtitle, has the right to appeal in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. If the final Department decision is to issue a permit, initiation of judicial review procedures does not automatically stay the issuance under the Regulatory Program. Environment Article, §§15-503, Annotated Code of Maryland Effective date: Regulations .01—.03 were previously codified as COMAR 08.13.09.06A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.06 to COMAR 26.20.06, June 1996 Regulation .02 repealed effective December 27, 1999 (26:26 Md. R. 1961) The Bureau shall review each permit under the Regulatory Program on an annual basis, and before any permit renewal. After review, the Bureau may require revision or modification of any permit provisions in order to ensure compliance with the Regulatory Program. The Bureau shall inform the permittee, in writing, of any required changes in the permit. Within 15 days of receipt of notification of any required changes, the permittee may request an adjudicatory hearing in accordance with COMAR 26.20.34. A revision to a permit shall be obtained: Before implementation of any changes in the surface coal mining or reclamation operations approved under the original permit, when these changes constitute a significant departure from the method of conduct of mining or reclamation operations contemplated by the original permit; In order to continue operation, after any material reduction of the performance bond or other equivalent guarantee upon which the original permit was issued; or As otherwise required under the Regulatory Program. Any application for revision which proposes significant alterations in the original permit shall be: Subject to the applicable requirements of COMAR 26.20.02 and 26.20.03; Approved or disapproved by the Bureau in accordance with COMAR 26.20.04 and 26.20.05; and Submitted to the Bureau at least 150 days before the permittee desires to revise the permitted operation. Any application for a revision which does not propose significant alterations in the original permit shall be: Submitted to the Bureau at least 5 days before the permittee desires to revise the permitted operation; Accompanied by such narratives, maps, cross sections, and documentation as would be required if the revision were part of a new permit application; and Approved or disapproved by the Bureau if it would have been approved or disapproved as part of a new permit application. The following revisions are not considered significant alterations in the original permit: Changes in the seam of coal to be mined, with the approval of the mineral owner; Mining within 300 feet of an occupied dwelling, with the approval of the owner; Increases in the open acre limit; Decreases in the open acre limit; Decreases in the total permit acres; Relocation of haul roads or culverts and turnouts; Changes in the mining sequence or the direction or length of cuts; Relocation of topsoil stockpiles; Changes in the blasting plan, except that no changes are permitted to the hours of blasting without prior publication of the new schedule; Changes in the placement of spoil material or handling of acid-producing or toxic-producing material; Changes in the location or design of drainage control structures; Changes in the location of water treatment facilities or method of water treatment; Changes in the location, design, or number of diversion ditches; Changes in the method or sequence of regrading; Changes in the mining and reclamation equipment; Changes in the method of procedure for redistributing topsoil material; Changes in the seed bed preparation; Change in the rate of application and analysis of lime and fertilizer; Changes in the planting method, revegetation species or rate of application, and type or rate of application of mulch; Changes in the seasonal maintenance plan for revegetated areas; Incidental boundary revisions, provided the new permit area is contiguous to the original permit area and that no portion of the new area is more than 250 feet from the original area; Increase in total approved permit acres of not more than 10 acres per permit over the life of the permit. Any valid, existing permit issued pursuant to the Regulatory Program shall carry with it the right of successive renewal upon expiration of the term of the permit. However, successive renewal is available only for those areas which were specifically approved by the Bureau as within the boundaries of the permit. Complete applications for renewal of a permit shall be made at least 120 days before the expiration date of the permit. Renewal applications shall be in a form as required by the Bureau, and include at a minimum: The name and address of the permittee, the term of the renewal requested, the permit number, and a description of any changes to the matters set forth in the original application for a permit or prior permit renewal; A copy of the proposed newspaper advertisement under COMAR 26.20.04; the proof of publication of the advertisement shall be submitted within two weeks after the last date of publication; and Evidence that a liability insurance policy will be provided by the applicant for the proposed new period of time. Complete applications for renewal are subject to the requirements of public notice and participation contained in COMAR 26.20.04. Except as provided in §H of this regulation, a permit renewal shall be for a term not to exceed the period of the original permit. Upon the basis of a complete application for renewal and completion of all procedures required under COMAR 26.20.04, the Bureau shall issue a renewal of permit, unless the Bureau finds in writing that: The terms and conditions of the existing permit are not being satisfactorily met; The present mining and reclamation operations are not in compliance with the environmental protection standards under the regulatory program; The requested renewal substantially jeopardizes the operator's continuing responsibility to comply with the regulatory program on existing permit areas; The operator has not provided evidence of having liability insurance as required by COMAR 26.20.15; The operator has not provided evidence that any performance bond required to be in effect for the operations will continue in full force and effect for the proposed period of renewal, as well as any additional bond the Bureau might require; or Any additional revised or updated information required by the Bureau has not been provided by the applicant. The Bureau shall send copies of its decision to the applicant, any persons who filed objections or comments to the renewal, and to any persons who were parties to the hearing held on the permit renewal. Any person having an interest which is or may be adversely affected by the decision of the Bureau has the right to administrative and judicial review set forth in COMAR 26.20.06. In all cases, the burden of proof shall rest with the opponent of renewal. The Bureau may issue a renewal of a permit for a period coinciding with the duration of liability on all bonds posted on the permit if: An operator fails to submit an application for the renewal of a permit in accordance with §B of this regulation; or Only reclamation activities remain to be accomplished on the permit. The renewal of a permit under §H of this regulation includes the following conditions: Surface coal mining operations may not be conducted on the renewed permit; A liability insurance policy, as required by COMAR 26.20.15, shall be maintained in full force and effect during the period necessary to complete all reclamation activities on the permit; and Reclamation activities shall be conducted in accordance with COMAR 26.20.28 and 26.20.29 and the permit. A person seeking to succeed by transfer, assignment, or sale to the rights granted by a permit issued under the Regulatory Program, and before the date of the transfer, assignment, or sale, shall: Obtain performance bond coverage by methods that would provide that reclamation of all areas affected by the original permittee is assured under bonding coverage at least equal to that of the original permittee; and Provide the Bureau with an application for approval of the proposed transfer, assignment, or sale, including: The name and address of the existing permittee, The name and address of the person proposing to succeed by the transfer, assignment, or sale, and the name and address of that person's resident agent, A brief description of the proposed action requiring approval, and The same information as is required under COMAR 26.20.02.03A—Q for applications for new permits. The person applying for approval of the transfer, assignment, or sale of rights granted by a permit shall advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the original permittee, the number and particular geographic location of the permit, and the address to which written comments may be sent. Any person whose interests are or may be adversely affected, including but not limited to the head of any local, State or federal government agency, may submit written comments on the application to the Bureau, within 30 days of the date of advertisement. The Bureau may grant written approval for the transfer, sale, or assignment of rights under a permit, if it first finds, in writing, that: The applicant is eligible to receive a permit in accordance with COMAR 26.20.04.10B and C and 26.20.05.01; The applicant will conduct the operations covered by the permit in accordance with the Regulatory Program, and in full compliance with the terms and conditions of the original permit; and The applicant has submitted a performance bond or other guarantee at least equal to that of the original permittee. A successor in interest to a permittee may continue surface coal mining and reclamation operations according to the approved mining and reclamation plan and permit of the original permittee. The Bureau shall notify the transferor, the transferee, commenters, and the federal Office of Surface Mining of its findings and decision. The transferee shall immediately notify the Bureau of the consummation of the assignment or sale of permit rights. Environment Article, §§15-503, Annotated Code of Maryland Effective date: Regulations .01—.04 were previously codified as COMAR 08.13.09.08A—D, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.07 to COMAR 26.20.07, June 1996 A person may not conduct any prospecting without filing a written notice of intent to prospect with the Bureau at least 2 weeks before the beginning of any surface disturbance. A notice of intent to prospect shall be submitted in triplicate and contain the following information: The name, address, and telephone number of the person seeking to prospect. The name and address of all surface and mineral owners of the land on which prospecting is to be conducted. The name, address, and telephone number of the person who will be present at and responsible for conducting the prospecting activities. A description of the legal basis upon which the person who intends to prospect claims the right to enter and conduct prospecting operations, including reclamation, on the area. A description and map of the area to be prospected. The map shall be a U.S. Geological Survey 7.5 minute topographic survey map or equivalent map, and the scale of the map shall be as follows: If the prospecting involves only air or core drilling operations and does not cause substantial disturbance to the natural land surface the scale of the map shall be 2,000 feet to the inch or larger. The map shall show the following information: The proposed prospecting area and all access roads to the area; and The approximate location of all drill holes. If the prospecting involves the removal of the overburden to expose the coal seam or will cause substantial disturbance to the natural land surface or cause serious harm to water supply or water quality, the scale of the map shall be 500 feet to the inch or larger. The map shall show the following information: The boundaries of the property and the names of the surface and mineral owners of the tract or tracts; The name of the quadrangle, a north arrow, and the Maryland coordinates of the area to be prospected; The names of all receiving streams; The approximate location of the seam or seams to be prospected; and The number of acres to be disturbed and their approximate location, including all excavations and roads to be used or constructed to facilitate the prospecting. A copy of an approved county grading or sediment and erosion control permit, if applicable. A schedule indicating the estimated period of prospecting, including the anticipated dates of beginning and completion of prospecting. A description of the intended prospecting operations. A reclamation plan for the prospecting area. The reclamation plan shall include a plan for haul roads, sediment control, method of operation, casing or sealing wells, boreholes, or other underground opening, regrading, topsoil handling, and revegetation. If the Department determines, after review of the notice filed pursuant to this chapter, that the proposed prospecting operation is reasonably likely to cause substantial disturbance to the natural land surface or to cause serious harm to a water supply or water quality, the Bureau shall inform the person submitting the notice that the proposed prospecting operation may not begin before obtaining the written approval of the Bureau and submitting to the Bureau a prospecting bond in the amount specified under §B of this regulation. The amount of any prospecting bond required under §A of this regulation shall be $1,500 per acre of affected land, unless the Bureau determines in writing that conditions affecting reclamation costs at an operation require an amount greater than $1,500 per acre in order to assure that the estimated total cost of reclamation will be covered. The prospecting bond may be applied against the requirement for bonding a surface coal mining operation permit if a permit is obtained covering the prospecting area. If an open-pit mining permit is not obtained on the area, the bond shall be released, upon casing, or sealing of all drill holes, and satisfactory regrading and establishment of a permanent diverse species vegetative cover on all disturbed areas. The Bureau may not give written approval to any prospecting operation proposed to be conducted or controlled by a person who has failed to reclaim any other prospecting or surface coal mining operation in accordance with the reclamation requirements applicable to that operation. The following requirements shall apply to all prospecting operations: A maximum of 200 tons of coal may be removed from any prospecting area; Each prospect pit opening may not be more than 1 acre in size and shall be backfilled, seeded, and mulched within 30 days after it is opened; A maximum of 10 acres may be affected under a notice of intent to prospect or prospecting approval; and A notice of intent to prospect or prospecting approval shall be valid for 1 year from its date of filing or issue. Prospecting Performance Standards. Habitats of unique value for fish, wildlife, and other related environmental values shall be identified in the notice of intent to prospect and protected during the prospecting activities, in accordance with COMAR 26.20.23.02. Roads. Vehicle travel on other than established graded and surfaced roads shall be limited by the person who conducts prospecting to that absolutely necessary to conduct the prospecting. Travel shall be confined to graded and surfaced roads during periods when excessive damage to vegetation or rutting of the land surface could result. All roads shall be used, improved, or constructed in a manner which does not contribute additional suspended solids to stream flow or runoff and prevents damage to private or public property. If possible, existing roads should be used for prospecting. Promptly after prospecting activities are completed, all roads constructed during prospecting shall be reclaimed by regrading to the approximate original contour, and seeded and mulched, or to a condition equal to or better than their pre-prospecting condition. If a road is to remain after prospecting activities, the construction, maintenance, and stabilization of the road shall comply with the provisions of COMAR 26.20.19. Blasting is prohibited on prospecting operations unless specifically approved by the Bureau. All blasting shall be conducted in accordance with COMAR 26.20.22. All areas disturbed during a prospecting operation shall be returned to the approximate original contour promptly after these areas are no longer needed for prospecting. Toxic-forming or acid-forming materials shall be handled and disposed of in accordance with the Regulatory Program. Topsoil shall be removed, stored, and redistributed on disturbed areas as necessary to assure successful revegetation as required by the Bureau in accordance with the Regulatory Program. Revegetation of areas disturbed by prospecting shall be performed by the person who conducts the prospecting, or by that person's agent, in accordance with the revegetation standards of the Regulatory Program. Except for small and temporary diversions of overland flow of water around new roads, drill pads, and support facilities, an ephemeral, intermittent, or perennial stream may not be diverted during coal prospecting activities. Overland flow of water shall be diverted in a manner that: Prevents erosion; Prevents, to the extent possible and using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the prospecting area; and Complies with all other applicable State or federal requirements. Each prospecting hole, borehole, well, or other exposed underground opening created during prospecting shall meet the requirements of the Regulatory Program. All facilities and equipment shall be removed from the prospecting area promptly when they are no longer needed, except for those facilities and equipment that the Bureau determines may remain to: Provide additional environmental quality data; Reduce or control the on-site and off-site effects of the prospecting activities; or Facilitate future surface mining and reclamation operations by the person conducting the prospecting under an approved open-pit mining permit. Prospecting shall be conducted in a manner which minimizes disturbance of the prevailing hydrologic balance and may include sediment control measures such as those required in the Regulatory Program. Except as provided in §B of this regulation, all information submitted to the regulatory authority under this chapter shall be made available for public inspection and copying at the local offices of the regulatory authority closest to the exploration area. The regulatory authority may not make information available for public inspection, if the person submitting it requests in writing, at the time of submission, that it not be disclosed and the regulatory authority determines that the information is confidential. The regulatory authority shall determine that information is confidential if it concerns trade secrets or is privileged commercial or financial information which relates to the competitive rights of the person intending to conduct coal exploration. Information requested to be held as confidential under this regulation may not be made publicly available until after notice and opportunity to be heard is afforded both persons seeking and opposing disclosure of the information. All operators conducting prospecting activities shall have a copy of the notice of intent to prospect or prospecting approval available at or near the prospecting area or areas for review by the Bureau upon request. Environment Article, §§15-503, Annotated Code of Maryland Effective date: Regulations .01, .02, and .03—.06 were previously codified as COMAR 08.13.09.07A and B, C—E, and F—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.08 to COMAR 26.20.08, June 1996 When mining is not otherwise prohibited by statute or regulation, all open-pit mining operations on land owned by the State, whether or not the ownership includes mineral rights incident to the land, shall comply with the requirements of this subtitle. This includes provisions relating to permit applications, bonding and insurance, as well as all performance and reclamation standards. In addition, the following regulations set out special requirements applicable to open-pit mining and reclamation operations on land owned by the State. Open-pit mining on State-owned land is permitted only: To the extent that it will directly promote the proper reclamation of abandoned surface or deep mines; or In the case of public construction activities, to the extent that mining will accomplish the construction project or avoid, eliminate, or reduce adverse environmental impacts and hazardous conditions associated with construction projects such as water pollution, subsidence, and landslides. Applicants for permits to mine on State-owned land shall comply with the permit application requirements of this subtitle as specified in COMAR 26.20.02 and, if applicable, COMAR 26.20.03. The Bureau of Mines shall process the application as provided by COMAR 26.20.04 except that the Bureau shall also forward a copy of the application to the agency responsible for management of the area to be affected by mining. The copy of the application that is sent to the management agency shall be instead of any notification that would otherwise be sent to that agency under COMAR 26.20.04. The management agency shall evaluate the application and prepare an analysis of the impact of the proposed mining on the current and future use of the area and on State policies and objectives applicable to the area. The management agency shall forward its recommendations to the Bureau. Any permit for open-pit mining on State-owned land is subject to the approval of the Board of Public Works. Permits may not be issued for open-pit mining in conjunction with the reclamation of abandoned open-pit mines unless: The disturbed area of the abandoned open-pit mine is at least 2 acres; and One or more of the following conditions exist which will be wholly or partially corrected by the proposed mining: Active soil erosion, Water pollution, Highwalls more than 10 feet high, or Potential landslide areas. Permits may not be issued for open-pit mining in conjunction with the reclamation of an abandoned deep mine unless one or more of the following conditions exist which will be wholly or partially corrected by the proposed mining: Gob piles or spoil materials in excess of 1 acre; Subsidence damage; Water pollution; or Underground fire. The area to be disturbed by open-pit mining in conjunction with the reclamation of an abandoned open-pit mine shall be limited to that area necessary to blend the abandoned mine with the surrounding adjacent topography. This area may not exceed the disturbed area of the abandoned mine, including the pit and spoil areas, plus: The area within a distance of 400 feet perpendicular to the abandoned mine highwall; The area within a distance of 200 feet lateral to the ends of the abandoned mine highwall; and The minimal area necessary to stockpile topsoil and overburden during mining activities and to gain access to the site as determined by the Bureau. The area to be disturbed by open-pit mining in conjunction with the reclamation of an abandoned deep mine shall be limited to the surface area above the abandoned mine plus: The area within 200 feet of the perimeter of the abandoned deep mine; The minimal area required to gain access to the site; The minimal area required to blend gob piles and spoil materials into the surrounding undisturbed topography. The area to be disturbed by open-pit mining in conjunction with public construction activities shall be limited to: The area which would be disturbed by the construction project in the absence of any open-pit mining; and Additional areas necessary to avoid or mitigate adverse environmental impacts and hazardous conditions caused by or affecting the construction project such as water pollution, subsidence, and landslides. Environment Article, §§15-503, Annotated Code of Maryland Effective date: Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.09A; B, C, D, F; and E, G, H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.09 to COMAR 26.20.09, June 1996 In this chapter, the following terms have the meanings indicated. Terms Defined. “Cemetery” means any area of land where human bodies are interred. “Community or institutional building” means any structure, other than a public building or an occupied dwelling, which: Is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups; Functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or Is used for public services, including but not limited to water supply, power generation, or sewage treatment. “Occupied dwelling” means any building that is currently being used on a regular or temporary basis for human habitation. “Public building” means any structure that is owned or leased by a government agency and used principally for public business, meetings, or other group gatherings. “Public park” means an area dedicated or designated by any federal, State, or local agency for public recreational use, whether this use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use. “Public road” means any thoroughfare open to the public which has been, and is being used by the public for vehicular travel, and which is maintained by a government agency. Valid Existing Rights. “Valid existing rights” means, except for haul roads: Those property rights in existence at the time the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, that were created by a legally binding conveyance, lease, deed, contract, or other document which authorizes the applicant to produce coal by a surface coal mining operation; and The person proposing to conduct surface coal mining operations on the land had obtained all permits and other authorizations required to conduct surface coal mining operations or had made a good faith effort to obtain all necessary permits and authorizations to conduct the operations on the land that came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and at a minimum had submitted an application for any permit required under this subtitle, or can demonstrate to the Bureau that the coal land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. “Valid existing rights” means, for haul roads: A properly recorded right-of-way or easement for a road in that location which existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right-of-way or easement for surface coal mining operations; Any road in existence when the land upon which it is located came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and the person has a legal right to use the road for surface coal mining operations; A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; or Valid existing rights exist under §B(7)(a) of this regulation. Interpretation of the terms of the document relied upon to establish valid existing rights shall be based either upon applicable State case law concerning interpretation of documents conveying mineral rights or, if no applicable State case law exists, upon the usage and custom at the time and place that it came into existence and upon a showing by the applicant that the parties to the document actually contemplated a right to conduct the same underground or surface mining activities for which the applicant claims a valid existing right. “Valid existing rights” does not mean mere expectation of a right to conduct surface coal mining operations, or the right to conduct underground coal mining. Examples of rights which alone do not constitute valid existing rights include but are not limited to coal exploration permits or licenses, applications, or bids for leases. In order to meet the needed for and immediately adjacent standard in Regulation .01B(7)(a)(ii) of this regulation, a person shall demonstrate that prohibiting expansion of the surface coal mining operation onto land under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, when the Bureau approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets the standard in §A of this regulation, the Bureau may consider factors such as: The extent to which the coal supply contracts or other legal and business commitments that predate the time the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, depend upon use of that land for surface coal mining operations; The extent to which plans used to obtain financing for the operation before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations; The extent to which investments in the operation before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations; or Whether the land lies within the areas identified on the map required under COMAR 26.20.02.10A(6) before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. Subject to valid existing rights, as determined under Regulation .07 of this chapter, or an exception for an existing operation under Regulation .04 of this chapter, surface coal mining operations may not be conducted on any of the following lands: Lands within the boundaries of the Youghiogheny River Scenic Corridor; Lands which will adversely affect any publicly owned park or any publicly owned places included on the National Register of Historic Places, unless approved jointly by the Bureau and the federal, State, or local agency with jurisdiction over the park or places; Lands within 100 feet measured horizontally from the outside right-of-way line of any public road, except: Where mine access roads or haulage roads are located within the right-of-way line in order to join the public road; or Where the Bureau allows the public road to be relocated, closed, or the area affected to be within 100 feet of this road, after requiring the applicant to obtain the written approval of the authority with jurisdiction over the public road, and making a written finding that the interests of the affected public and landowners will be protected; Lands within 300 feet measured horizontally from any occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to surface coal mining operations closer than 300 feet; Lands within 25 feet, or a distance of 2 feet for each vertical foot of highwall, whichever is greater, of any adjacent property line, unless the owner of the adjacent property has provided a written waiver consenting to surface coal mining operations within a closer distance; Lands within 300 feet measured horizontally from any public building, school, community or institutional building, or public park; or Lands within 100 feet measured horizontally from a cemetery. Upon receipt of a complete application for a surface coal mining operation permit or a revision of the boundaries of a surface coal mining operation permit, the Bureau shall review the application to determine whether the proposed surface coal mining operations are limited or prohibited under this chapter. If the proposed operation is to be located on any lands where surface coal mining is prohibited, the Bureau shall reject any portion of the application that would locate surface coal mining operations on land protected under Regulation .02 of this chapter unless: The site qualifies for an exception for existing operations under Regulation .04 of this chapter; The applicant has valid existing rights for the land as determined under Regulation .07 of this chapter; The applicant obtains a waiver or exception from the prohibitions of Regulation .02C, D, and E of this chapter in accordance with §§D, E, and F of this regulation; or For land protected by Regulation .02B of this chapter, both the Bureau and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with §H of this regulation. If the Bureau is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Regulation .02A of this chapter, or closer than the limits provided in Regulation .02F and G of this chapter, the Bureau shall transmit a copy of the relevant portions of the permit application to the appropriate federal, State, or local government agency with a request for assistance in making a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that the agency has 30 days from receipt of the request in which to respond. On request by the appropriate agency, the Bureau shall grant an extension to the 30-day period of an additional 30 days. If a response is not received within the 30-day period or within the extended period granted, the Bureau may make the necessary determination based on the information it has available. If the proposed mining operation is to be conducted within 100 feet measured horizontally from the outside right-of-way line of any public road, except where mine access roads or haulage roads join this right-of-way line, or if the applicant proposes to relocate or close any public road, the Bureau: Shall require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road; Shall require the applicant to specifically advertise that the proposed surface mining operation would relocate or close a public road or would be conducted within 100 feet of the right-of-way of a public road and provide a public comment period and opportunity to request a public hearing; Shall make a written finding based upon information received at the public hearing, within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed mining operation; and May not allow mining within 100 feet of the outside right-of-way line of a public road, or allow a public road to be relocated or closed, unless the Bureau determines that the interests of the public and affected landowners will be protected. If the proposed surface coal mining operation is to be conducted within 300 feet measured horizontally from any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, stating that the owner and signator had the legal right to deny mining and knowingly waived that right and consented to the operations within a closer distance of the dwelling as specified in the waiver. The waiver shall be knowingly made and separate from a lease or deed unlessthe lease or deed contains an explicit waiver. If an applicant obtained a valid waiver before August 3, 1977, a new waiver is not required. If an applicant obtained a valid waiver on or after August 3, 1977, that waiver shall remain effective against subsequent purchasers who had actual or record knowledge of the existing waiver at the time of purchase. A subsequent purchaser is considered to have record knowledge if the waiver has been properly filed in public property records under State laws, or if the mining has proceeded to within the 300-foot limit before the date of purchase. If the proposed surface coal mining operation is to be conducted within 25 feet, or a distance of 2 feet for each vertical foot of highwall, of any adjacent property line, the applicant shall submit with the application a written waiver from the owner of the adjacent property, consenting to the operations within a closer distance as specified in the waiver. If the Bureau determines that the proposed surface mining operation will adversely affect any publicly owned park or any places included on the National Register of Historic Places, the Bureau shall transmit to the federal, State, or local agencies with jurisdiction over the park or historic place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that the agency has 30 days from receipt of the request in which to respond, and that failure to interpose a timely objection constitutes approval. The Bureau, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted constitutes an approval of the proposed permit. A permit for the operation may not be issued unless jointly approved by all affected agencies. The Bureau's determination as to whether a person holds a valid existing right, or whether surface coal mining operations existed on the date of enactment, is subject to administrative and judicial review. The prohibitions and limitations of Regulation .02 of this chapter do not apply to surface coal mining operations for which a permit issued by the Bureau under the Regulatory Program exists when the land comes under the protection of Regulation .02 of this chapter. This exception only applies to lands within the permit area as it exists when the land comes under the protection of Regulation .02 of this chapter. A person that intends to conduct surface coal mining operations on the basis of valid existing rights under Regulation .02 of this chapter shall submit a request for a valid existing rights determination to the Bureau. This request may be submitted before preparing and submitting an application for a permit for the land. A request for a valid existing rights determination that relies on the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall provide a property rights demonstration. The demonstration shall include: A legal description of the land to which the request pertains; Complete documentation of the character and extent of the requestor's current interests in the surface and mineral estates of the land to which the request pertains; A complete chain of title for the surface and mineral estates of the land to which the request pertains; A description of the nature and effect of each title instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities; A description of the type and extent of surface coal mining operations that the requestor claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how these operations would be consistent with State property law; Complete documentation of the nature and ownership, as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, of all property rights for the surface and mineral estates of the land to which the request pertains; Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains; Documentation that, if the coal interests have been severed from other property interests, the owners of other property interests in the land to which the request pertains have been notified and provided an opportunity to comment on the validity of the property rights claimed in the request within 30 days of the notice; and Any comments received in response to the notification required by §B(8) of this regulation. A request for a valid existing rights determination that relies on the good faith/all permits standard in Regulation .01B(7)(a)(ii) of this chapter shall contain: All of the information required by §B of this regulation; Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that were obtained before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; Application dates and identification numbers for any permits, licenses, and authorizations for which applications were submitted before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; and An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. A request for a valid existing rights determination that relies upon the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall contain: All of the information required by §B of this regulation; and An explanation of how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including the demonstration required by Regulation .01-1 of this chapter that prohibiting expansion of the operation onto the land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. A request for a valid existing rights determination that relies upon one of the standards for roads in Regulation .01B(7)(b) of this chapter shall contain satisfactory documentation that: The road existed when the land on which it is located came under the protection of Environment Article, §15-505(b)(2), or Regulation .02 of this chapter, and the requestor has a legal right to use the road for surface coal mining operations; A properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances the requestor has a legal right to use or construct a road across that right-of-way or easement to conduct surface coal mining operations; or A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. Upon receipt of a request for a valid existing rights determination, the Bureau shall complete an initial review to determine if the request includes all applicable requirements of Regulation .05 of this chapter. If the request does not include all of the applicable information, the Bureau shall return the request with notification of the missing information. If the request is not returned to the Bureau within 30 days after receipt of the notification in §A of this regulation, the Bureau shall issue a determination that valid existing rights have not been demonstrated in accordance with Regulation .07 of this chapter. When the Bureau determines that a request for a valid existing rights determination is complete, the Bureau shall: Notify the requestor, in writing, that the application is complete and require the requestor to publish the notice required by §D of this regulation; and Provide a copy of the notice required by §C(1) of this regulation to: The Bureau of Mines; All reasonably locatable owners of surface and mineral estates in the land included in the request; and The owner of the feature causing the land to come under the protection of Regulation .02 of this chapter, and when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Regulation .02 of this chapter. Upon receipt of the Bureau notification that the request is complete, the requestor shall cause a notice to appear in a newspaper of general circulation in the county in which the land is located. The notice shall contain: A heading of “Notice of Request for Valid Existing Rights Determination”; The name and address of the requestor; The location of the land to which the request pertains; A description of the type of surface coal mining operations planned; A reference to and brief description of the applicable standards under the definition of valid existing rights in Regulation .01B(7) of this chapter that contains the information required by §E of this regulation; A statement that the Bureau will not make a decision on the merits of the request if, by the close of the comment period of the notice, a person with a legal interest in the land initiates appropriate legal action to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim for valid existing rights if the request relies upon one or more of the standards in Regulation .01B(7)(a)(ii) and (b)(i)and (ii) of this chapter; A description of the procedures the Bureau will follow in processing the request; The closing date of a comment period that is a minimum of 30 days after publication of the notice; A statement that interested persons may obtain a 30 day extension of the comment period upon written request to the Bureau; and The name and address of the Bureau office where a copy of the request is available for public inspection and where comments and requests for extension of the comment period may be sent. The reference and description required by §D(5) of this regulation shall include a description of the: Property rights claimed and the basis for the claim if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this regulation; Basis for the claim that the road existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and that a legal right exists to use the road for surface coal mining operations if the request relies upon the standard in Regulation .01B(7)(b)(ii) of this chapter; or Basis for the claim that a properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances a legal right exists to use or construct a road across the right-of-way or easement to conduct surface coal mining operations, if the request relies upon the standard in Regulation .01B(7)(b)(i) of this regulation. The notice required by §C(2) of this regulation shall provide a 30 day comment period starting from the date of service and specify that an additional 30 days is available upon written request. The Bureau may grant additional time for good cause upon request and is not required to consider comments received after the closing date of the comment period. The Bureau shall review the information submitted under Regulation .05 of this chapter, the comments received under Regulation .06 of this chapter, and any other reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request for valid existing rights. The Bureau shall notify the applicant, in writing, if it determines the record is inadequate, providing an explanation of the inadequacy and requesting the submittal of additional information that is necessary to complete the record. The notice shall require the requested information to be submitted within 30 days from receipt of the notice. When the record is complete and adequate, the Bureau shall determine whether the request submitted under Regulation .05 of this chapter has demonstrated valid existing rights. The Bureau's decision shall be in writing and contain findings of fact and conclusions sufficient to justify the decision. The Bureau shall issue a determination that valid existing rights have not been demonstrated if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The determination shall be made without prejudice. The request may be refiled when the property rights dispute is finally adjudicated. This section only applies to legal action that is initiated as of the closing date of the comment period under Regulation .06D and F of this chapter. If the record of the request indicates disagreement as to the accuracy of the property rights claims, but is not the subject of any pending litigation, the Bureau shall evaluate the merits of the information in the record and determine whether a demonstration of valid existing rights has been made. The Bureau shall issue a decision in accordance with §B of this regulation. The Bureau shall issue a determination that valid existing rights have not been demonstrated if any of the information requested under §A of this regulation is not submitted within 30 days from receipt of the notice. This determination is made without prejudice and a revised request may be refiled at any time. After making a determination under this regulation, the Bureau shall: Require the person requesting the determination to publish notice in a newspaper of general circulation in the county in which the land is located and provide a copy of the published notice to the Bureau; and Provide a copy of the determination and an explanation of appeal rights to: The person requesting the determination; The owner or owners of the land to which the determination applies; The owners of the feature causing the land to come under the protection of Regulation .01B(7) of this chapter; and When applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Regulation .01B(7) of this chapter. A determination by the Bureau on valid existing rights is subject to administrative and judicial review under COMAR 26.20.06. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.03 were previously codified as COMAR 08.13.09.10A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.10 to COMAR 26.20.10, June 1996 Regulation .01B amended effective February 12, 2007 (34:3 Md. R. 301) Regulation .01-1 adopted effective February 12, 2007 (34:3 Md. R. 301) Regulation .02 amended effective February 12, 2007 (34:3 Md. R. 301) Regulation .03 amended effective February 12, 2007 (34:3 Md. R. 301) Regulation .04 adopted effective February 12, 2007 (34:3 Md. R. 301) Regulation .05 adopted effective February 12, 2007 (34:3 Md. R. 301) Regulation .06 adopted effective February 12, 2007 (34:3 Md. R. 301) Regulation .07 adopted effective February 12, 2007 (34:3 Md. R. 301) In this chapter, the following terms have the meanings indicated. Terms Defined. “Fragile lands” means geographic areas containing natural, ecologic, scientific, or esthetic resources that could be damaged or destroyed by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under COMAR 26.20.10. “Historic lands” means historic or cultural districts, places, structures, or objects, including archeological and paleontological sites, National Historic Landmark sites, sites listed on or eligible for listing on a State or national register of historic places, sites having religious or cultural significance to Native Americans or religious groups or sites for which historic designation is pending. “Natural hazard lands” means geographic areas in which natural conditions exist that pose or, as a result of surface coal mining operations, may pose, a threat to the health, safety, or welfare of people, property, or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, avalanches, and areas of unstable geology. “Substantial legal and financial commitments in a surface coal mining operation” means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities, and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development before production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments. A person having an interest which is or may be adversely affected has the right to petition the Bureau to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. For the purpose of this chapter, a person having an interest which is or may be adversely affected shall demonstrate how the person: Meets an “injury in fact” test by describing the injury to the person's specifically affected interests; and Is among the injured. The Bureau shall determine what information shall be provided by the petitioner to: Have an area designated as unsuitable for surface coal mining operations; or Terminate an existing designation. At a minimum, a complete petition for designation shall include: The petitioner's name, address, telephone number, and notarized signature; Identification of the petitioned areas, including the area's location and size, and a U.S. Geological Survey 7.5 minute topographic map outlining the perimeter of the petitioned area; An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Regulation .02 of this chapter; A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and Allegations of fact and supporting evidence, covering all lands in the petition area, which establish that the area is unsuitable for all or certain types of surface coal mining operations under specific criteria of Regulation .04 of this chapter, assuming that contemporary mining practices required under the Regulatory Program would be followed if the area were to be mined. Each of the allegations of fact under §B of this regulation should be specific as to the portion of the petitioned area and petitioner's interests to which the allegation applies, and be supported by evidence that tends to establish the validity of the allegations for the portion of the petitioned areas. The Bureau may request that the petitioner provide other supplementary information which is readily available. At a minimum, a complete petition for termination shall include: The petitioner's name, address, telephone number, and notarized signature; Identification of the petitioned area, including its location and size, and a U.S. Geological Survey 7.5 minute topographic map outlining the perimeter of the petitioned area to which the termination petition applies; An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Regulation .02 of this chapter; and Allegations of facts covering all lands for which the termination is proposed. Each of the allegations of fact under §E(4) of this regulation shall be specific as to the portions of the petitioned area and petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the portion of the petitioned area. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence shall be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated. The Bureau may request that the petitioners provide other supplementary information which is readily available. Upon petition, an area shall be designated as unsuitable for all or certain types of surface coal mining operations if the Bureau determines that reclamation is not technologically and economically feasible under the Regulatory Program. Upon petition an area may be (but is not required to be) designated as unsuitable for certain types of surface coal mining operations, if the operations will: Be incompatible with existing State or local land use plans or programs; Affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or esthetic values or natural systems; Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or Affect natural hazard lands in which the operations could substantially endanger life and property, these lands to include areas subject to frequent flooding and areas of unsuitable geology. The requirements of this chapter do not apply to: Lands on which surface coal mining operations were being conducted on August 3, 1977; Lands covered by a permit issued under the Interim Regulatory Program or the Regulatory Program; or Lands where substantial legal and financial commitments in surface coal mining operations were in existence before January 4, 1977. Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to this chapter does not prohibit coal prospecting in the area, if conducted in accordance with the Regulatory Program, and other applicable requirements. Prospecting on any lands designated unsuitable for surface coal mining operations must be approved by the Bureau to ensure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining. Within 30 days of receipt of a petition, the Bureau shall notify the petitioner by certified mail as to whether the petition is complete. For the purpose of this regulation, “complete” means that all of the information required under Regulation .03A or B of this chapter has been provided. If the Bureau determines that the petition is incomplete or frivolous, or that the petitioner does not have an interest which is or may be adversely affected, the Bureau shall return the petition to the petitioner together with a written statement of the reasons for the determination and the categories of information needed to complete the petition. The Bureau shall determine whether any identified coal deposits exist in the area covered by the petition, without requiring any showing from the petitioner. If the Bureau finds that there are not any identified coal deposits in that area, the Bureau shall return the petition to the petitioner with a statement of the findings. The Bureau may reject petitions for designations or terminations of designations which are frivolous. A frivolous petition is one in which the allegations of harm lack serious merit. When considering a petition for an area which was previously but unsuccessfully proposed for designation, the Bureau shall determine if the new petition presents significant new allegations of facts with evidence which tends to establish the allegations. If the petition does not contain the material, the Bureau may not consider the petition and shall return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered. The Bureau shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition. Any petitions received on a permit application after the first newspaper notice in the applicant's newspaper advertisement under COMAR 26.20.04.03 do not prevent the Bureau from issuing a decision on that permit application. The Bureau may return any petition received thereafter to the petitioner with a statement why the Bureau cannot consider the petition. After a petition is received, the Bureau shall notify the general public of the receipt of the petition by advertising in a local newspaper providing broadest circulation in the area covered by the petition in the region of the petitioned area, and in the Maryland Register. The Bureau shall: Make copies of the petition available to the public; and Provide copies of the petition to: Other interested government agencies; Intervenors; Persons with an ownership interest of record in the property; and Other persons known to the Bureau to have an interest in the property. Promptly after the determination that a petition is complete, the Bureau shall request submissions from the general public of relevant information: By a newspaper advertisement placed once a week for 2 consecutive weeks in the location of the area covered by the petition; In the newspaper providing broadest circulation in the region of the petitioned area; and In the Maryland Register. Until 3 days before the Bureau holds a hearing under §L of this regulation, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address, and telephone number. Beginning immediately after a complete petition is filed, the Bureau shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Bureau. The Bureau shall make the record available for public inspection during all normal business hours at the main office of the Bureau. Copying will be permitted at the Bureau at the normal rate per page. The Bureau shall also maintain information at or near the area in which the petitioned land is located and make this information available to the public for inspection and for copying at reasonable cost during all normal business hours. At a minimum, this information shall include a copy of the petition. Legislative and Fact-Finding Hearing. Within 10 months after receipt of a complete petition, the Bureau shall hold a public hearing in the locality of the area covered by the petition, unless all petitioners and intervenors agree that the hearing need not be held. The hearing shall be legislative and fact-finding in nature. The Bureau may subpoena witnesses as necessary. The hearing may be conducted with cross-examination of expert witnesses only. A record of the hearing shall be made and preserved. A person does not bear the burden of proof or persuasion. All relevant parts of the data base and inventory system and all public comments received during the public comment period shall be included in the record and considered by the Bureau in its decision on the petition. The Bureau shall give notice of the date, time, and location of the hearing to: Local, State, and federal agencies that may have an interest in the decision on the petition; The petitioner and the intervenors; and Any persons with an ownership or other interest known to the Bureau in the area covered by the petition. Notice of the hearing shall be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing. The Bureau shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for 2 consecutive weeks in the locale of the area covered by the petition, and once during the week before the scheduled date of the public hearing. The consecutive weekly advertisement shall begin between 4 and 5 weeks before the scheduled date of the public hearing. The Bureau may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale. Before designating any land areas as unsuitable for surface coal mining operations, the Bureau shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of this designation on the environment, the economy, and the supply of coal. If all petitioners and intervenors stipulate agreement before the hearing, the petition may be withdrawn from consideration. In reaching its decision on a petition, the Bureau shall use: The information contained in the data base and inventory system; Information provided by other governmental agencies; The detailed statement prepared under Regulation .07M of this chapter; and Any other relevant information submitted during the comment period. A final written decision shall be issued by the Bureau, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Bureau shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding. The decision of the Bureau with respect to a petition, or the failure of the Bureau to act within the time limits set forth in this regulation, shall be a final action of the Department subject to judicial review. The Bureau shall develop a data base and inventory system to assist in evaluation of petitions under this chapter. The Bureau shall include in the system information relevant to the criteria in Regulation .04 of this chapter, including but not limited to information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer, and the agency administering §127 of the Clean Air Act, as amended (42 U.S.C. §7470 et seq.). The Bureau shall add to the data base and inventory system information on potential coal resources of the State, demand for those resources, the environment, the economy, and the supply of coal, sufficient to enable the Bureau to prepare the statements required by Regulation .07M of this chapter. The Bureau also shall add to the data base and inventory system information that becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources. The Bureau shall: Make the information and data base system developed under Regulation .09 of this chapter available to the public for inspection free of charge and for copying at reasonable cost; Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have designations terminated and describe how the inventory and data base system can be used; Maintain maps of areas designated as unsuitable for all or certain types of surface coal mining operations; Make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment, except proprietary information on the chemical and physical properties of the coal. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.10 were previously codified as COMAR 08.13.09.11A—J, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.11 to COMAR 26.20.11, June 1996 Coal extraction which is an incidental part of government-financed construction is exempt from all requirements of the Regulatory Program except the requirements of this chapter. In this chapter, the following terms have the meanings indicated. Terms Defined. Government-Financed Construction. “Government-financed construction” means construction funded 50 percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland, and 30 CFR Subchapter R. “Government-financed construction” does not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments. “Extraction of coal incidental to government-financed construction” means the extraction of coal which is necessary to enable the construction to be accomplished. Only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line, or other similar constructions, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction is subject to the requirements of the Regulatory Program. Any person extracting coal incidental to government-financed highway or other construction shall maintain, on the site of the extraction operation and available for inspection, documents which show: A description of the construction project; The exact location of the construction, right-of-way, or the boundaries of the area which will be directly affected by the construction; and The government agency which is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing. The government financing agency may be a federal, State, county, municipal, or local unit of government, or a department, bureau, agency, or office of the unit which, directly or through another unit of government, finances construction. When the Bureau is considering an abandoned mine land reclamation project as government-financed construction and the level of funding will be less than 50 percent of the total cost because of planned coal extraction, the Bureau shall determine the likelihood: That nearby or adjacent mining activities may create new environmental problems or adversely affect existing environmental problems at the site; That reclamation activities at the site may adversely affect nearby or adjacent mining activities; and Of the coal being mined under a permit issued in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland. The determination under §A(3) of this regulation shall take into account available information, such as: Coal reserves from existing mine maps or other sources; Existing environmental conditions; All prior mining activity on or adjacent to the site; Current and historic coal production in the area; and Any known or anticipated interest in the mining site. If the Bureau decides to proceed with the reclamation project after making the determinations under §A of this regulation, the Bureau shall: Determine the limits on any coal refuse, coal waste, or other coal products which may be extracted under this regulation; and Delineate the boundaries of the abandoned mine land reclamation project. The Bureau shall include documentation in the abandoned mine land project file for the: Determinations made under §§A and C of this regulation; Information taken into account in making the determinations; and Names of the persons making the determinations. For each abandoned mine land reclamation project to be approved under this regulation, the Bureau shall: Characterize the site in terms of mine drainage, active slides and slide prone areas, erosion and sedimentation, vegetation, toxic materials, and hydrologic balance; Ensure that the reclamation project is conducted in accordance with the provisions of Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland, and 30 CFR Subchapter R; Develop specific-site reclamation requirements, including performance bonds, when appropriate, in accordance with State procedures; and Require the contractor conducting the reclamation to provide, before the time the reclamation project begins, documents that clearly authorize the extraction of coal and payment of royalties. The Bureau shall require a reclamation contractor who extracts coal beyond the limits of the incidental coal specified in §C of this regulation to obtain a permit for the coal in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.12A, A(1) and (2), and B, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.12 to COMAR 26.20.12, June 1996 Regulation .02 amended effective May 14, 2001 (28:9 Md. R. 890) Regulation .04 adopted effective May 14, 2001 (28:9 Md. R. 890) All surface operations and activities conducted in conjunction with deep mining of coal pursuant to Environment Article, Title 15, Subtitle 6, Annotated Code of Maryland, shall comply with the requirements of this subtitle. This includes provisions relating to permit applications, bonding, and insurance, as well as all performance and reclamation standards. In addition, the following regulations in this chapter set out special requirements applicable to deep mines. Each mine entry which is temporarily inactive, but has a further projected useful service under the approved permit application, shall be protected by barricades or other covering devices, and fenced and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the underground mining activities. Each exploration hole, other drill hole, or borehole, shaft, well, and other exposed underground opening which has been identified in the approved permit application for use to return underground development waste, coal processing waste, or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed until actual use. Unless excepted under §B of this regulation, each shaft, drift, adit tunnel, exploratory hole, entryway, or other opening to the surface from underground shall be capped, sealed, backfilled, or otherwise properly managed, as required by the Bureau. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters. Permanent closure may not be required where an opening is needed for monitoring purposes, or is approved for transfer as a water well or some other use upon a showing of no adverse environmental or health and safety effects. Bureau approval shall be required for all these exceptions. Mine opening seals shall be: Designed using the best technology currently available and certified by a qualified registered professional engineer; and Certified after construction by a qualified registered professional engineer as having been constructed according to the approved design. The surface disturbance for the face-up area may not exceed 400 lineal feet along the seam to be mined. The face-up area shall be prepared in such a manner that drainage from the face-up area will result in minimum erosion and sedimentation. The face-up area may not be located in an area where the original contour of the land, measured from the cropline of the seam to be mined to the estimated toe of the fill bench, exceeds 20 degrees from the horizontal, unless no fill bench is created and the spoil from the face-up area is disposed in a suitable disposal area. The amount of overburden and the amount of coal to be removed from the face-up area shall be set forth in the plan. Surface openings and accesses to underground workings shall be located to prevent gravity discharge of water from the mine, unless it is demonstrated that the untreated discharge will comply with the performance standards of COMAR 26.20.21.02F. In this regulation, an owner of interest in real property includes an owner, a renter, a tenant, or a lessee of real property. Operations shall be conducted to minimize water pollution, and, where necessary, treatment methods shall be used to control water pollution. Acceptable practices to control and minimize water pollution include but are not limited to: Stabilizing disturbed areas through land shaping; Diverting runoff; Achieving quickly germinating and growing stands of temporary vegetation; Regulating channel velocity of water; Lining drainage channels with rock or vegetation; Mulching; Selectively placing and sealing acid-forming and toxic-forming materials; Designing mines to prevent gravity drainage of acid waters; Sealing; Controlling subsidence; and Preventing acid mine drainage. The permittee shall promptly replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source that is contaminated, diminished, or interrupted proximately resulting from underground mining activities. Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner. If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If this approach is selected, written concurrence shall be obtained from the water supply owner. All surface drainage from the disturbed area, including disturbed areas that have been graded, seeded, or planted, shall be passed through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving the permit area. Any discharge of water from underground workings to surface waters which does not meet the effluent limitations of the Regulatory Program shall also be passed through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving the permit area. Sedimentation ponds and treatment facilities for surface drainage from the disturbed area shall be maintained until the disturbed area has been restored and the vegetation requirements are met and the quality of the untreated drainage from the disturbed area meets the applicable State and federal water quality standards requirements for the receiving stream. Sedimentation ponds and treatment facilities for discharges from underground workings shall be maintained until either the discharge continuously meets the effluent limitations of the Regulatory Program or until the discharge has permanently ceased. The Bureau may grant exemptions from these requirements only in accordance with the following: The person who conducts the underground mining activities shall demonstrate that sedimentation ponds and treatment facilities are not necessary for the drainage to be exempted to meet the effluent limitations of the Regulatory Program. For drainage from areas affected by surface operations and facilities, an exemption may be authorized only if the disturbed surface drainage area within the total disturbed surface area is small and there is no mixture of surface drainage with a discharge from underground mine workings. For drainage from underground mine workings, exemption may be authorized only if there is no mixture of that drainage from surface areas. Sedimentation ponds shall be constructed in accordance with the Regulatory Program, in appropriate locations before beginning any underground mining activities in the affected drainage area. If the sedimentation ponds or series of sedimentation ponds are used so as to result in the mixing of drainage from the disturbed areas with drainage from other areas not disturbed by current surface coal mining and reclamation operations, the permittee shall achieve the effluent limitations of the Regulatory Program for all of the mixed drainage when it leaves the permit area. Underground mining activities shall be planned and conducted so as to prevent subsidence from causing material damage to the extent technologically and economically feasible, and so as to maintain the value and reasonably foreseeable use of surface lands. This may be accomplished by leaving adequate coal in place, backfilling, or other measures to support the surface, or by conducting underground mining in a manner that provides for planned and controlled subsidence. Except as provided in §C of this regulation, underground mining activities that employ mining technology that provides for planned subsidence in a predictable and controller manner shall utilize necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to all structures. Measures required to minimize material damage to structures under §B of this regulation are not required if: The permittee has the written consent of the owners of the structures; or The cost of the measures exceeds the anticipated costs of repair, unless the anticipated damage would constitute a threat to health or safety. Nothing in this regulation prohibits the standard method of room-and-pillar mining. The person engaged in underground mining activities shall comply with all provisions of the approved subsidence control plan prepared in accordance with COMAR 26.20.02.16. Presubsidence Surveys of Water Supplies. Each application for a permit shall contain a survey of the condition of the quantity and quality of all water supplies within the permit area and adjacent area that could be contaminated, diminished, or interrupted by subsidence. The applicant or permittee shall pay for any survey, technical assessment, or engineering evaluation used to determine the quantity and quality of any water supplies. A copy of the survey and any technical assessment or engineering evaluation shall be provided to the property owner and the Bureau. The mining schedule shall be distributed by mail to all owners of property and residents within the area above the underground workings and adjacent areas. Each of these persons shall be notified by mail at least 6 months before mining beneath his property or residence. The notification shall contain, as a minimum: Identification of specific areas in which mining will take place; Dates of mining activities that could cause subsidence and affect specific structures; and Measures to be taken to prevent or control adverse surface effects. Each person who conducts underground mining activities shall adopt all measures approved by the Bureau to reduce the likelihood of subsidence, to prevent subsidence that causes material damage or reduces the value of reasonably foreseeable use of surface lands, and to mitigate the effects of this damage or reduction of the value of reasonably foreseeable use of surface lands, and to mitigate the effects of this damage or reduction which may occur. Each person who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, with respect to each surface area affected by subsidence: Restore, rehabilitate, or remove and replace each damaged structure, feature, or value, promptly after the damage is suffered, to the condition it would be in if no subsidence had occurred, and restore the land to a condition capable of supporting reasonably foreseeable uses it was capable of supporting before subsidence; Purchase the damaged structure or feature for its fair market pre-subsidence value, and promptly after subsidence occurs restore the land surface to a condition capable and appropriate of supporting the purchased structure and other foreseeable uses it was capable of supporting before mining. This may not be deemed to grant or authorize an exercise of the power of condemnation or the right of eminent domain by any person engaged in underground mining activities. Each person who conducts underground mining activities will: Compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence, by purchase before mining of noncancellable premium prepaid insurance policy or other means approved by the Bureau as assuring before mining begins that payment will occur; Indemnify every person with an interest in the surface for all damages suffered as a result of the subsidence; and Fully restore the land to a condition capable of maintaining reasonably foreseeable uses which it could support before subsidence. In determining whether damage to protected structures was caused by subsidence from underground mining, the Bureau shall consider all relevant and reasonably available information. Underground mining activities may not be conducted beneath or adjacent to any perennial stream, or impoundment having a storage volume of 20 acre-feet or more, unless the Bureau, on the basis of detailed subsurface information submitted by the applicant, determines that subsidence will not cause material damage to streams, water bodies and associated structures. If subsidence causes material damage, measures will be taken to correct the damage and to prevent additional subsidence from occurring. Underground mining activities beneath any aquifer that serves as a significant source of water supply to any public water system shall be conducted so as to avoid disruption of the aquifer and consequent exchange of ground water between the aquifer and other strata. The Bureau may prohibit mining in the vicinity of the aquifer or may limit the percentage of coal extraction to protect the aquifer and water supply. Underground mining activities may not be conducted beneath or adjacent to any public buildings or facilities, including but not limited to churches, schools, hospitals, courthouses, and government offices, unless the Bureau, on the basis of detailed subsurface information, determines that subsidence from those activities will not cause material damage to these structures and specifically authorizes the mining activities. If the Bureau determines that it is necessary in order to minimize the potential for material damage to the features or facilities described above or to any aquifer or body of water that serves as a significant water source for any public water supply system, it may limit the percentage of coal extracted under or adjacent to it. Underground mining activities may not be conducted within the subjacent area where mining is predicted to result in subsidence of any public bridge. If subsidence causes material damage to any of the features or facilities covered under this regulation, the Bureau may suspend mining under or adjacent to those features or facilities until the subsidence control plan is modified to ensure prevention of further material damage. The Bureau shall suspend underground coal mining under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments, or permanent streams, if imminent danger is found to inhabitants of the urbanized areas, cities, towns, or communities. Within a schedule approved by the Bureau, the operator shall submit a detailed plan of the underground workings. The detailed plan shall include maps and descriptions, as appropriate, of significant features of the underground mine, including: The size, configuration, and approximate location of pillars and entries; Extraction ratios; Measures taken to prevent or minimize subsidence and related damage; Areas of full extraction; and Other information required by the Bureau. Except for the approved mine entries, a barrier of solid coal shall be provided around the perimeter of the underground mine area. The barriers shall be: Of sufficient width to withstand the weight of supported overburden without squeezing, crushing, or punching into the floor or roof of the mine; and Designed to withstand anticipated hydrostatic pressure and deterioration over time without failure. Barriers shall be a minimum of 50 feet in width or greater as determined by the formula W = 20 + 4T + 0.1D, when W = width of the barrier, T=thickness of the extraction, and D=depth of overburden. Perimeter barriers shall have a minimum of 50 feet of overburden. Barriers subject to a hydrostatic head shall be at least 1 foot wide for each foot to head. When mining is proposed to be conducted beneath barriers in an existing underground mine, the barriers in the existing upper mine shall be provided subsidence protection sufficient to assure preservation of their design integrity. Two copies of a projection map as required by Environment Article, §15-615(c), Annotated Code of Maryland, shall be submitted to the Bureau at least once every 6 months. The map shall be prepared by, or under the supervision of, and certified by a qualified registered professional engineer. Unless approved by the Bureau, the scale of the map shall be the same as the map submitted under COMAR 26.20.02.18A(4). The map shall provide the following information: Areas where mining occurred before the term of the map, including the type of mining; Areas where mining occurred during the term of the map, including the type of mining; Areas where mining is contemplated during the projection period, including the type of mining; Structural contours of the coal pavement based on actual survey information from the area where coal has been extracted; The date of the last survey upon which structural information is based; The location and dimensions, drawn to scale, of all surface structures; The area where coal will be left in place to provide subsidence protection for surface structures and features; Grid lines or symbols corresponding to the Maryland State Plane Coordinate System; If three or more sheets are required to cover the boundaries of the mine, a key map or index showing the arrangement of sheets in relation to the overall mine; A legend block identifying the different colors or symbols appearing on the map; and A title block containing the: Permittee's name; Name of the mine; Permit number; Dates of the term of the map; Dates to which the projection applies; Map scale; and Date the map was prepared. Environment Article, §§15-503 and 15-603, Annotated Code of Maryland Effective date: Regulations .01—.10 were previously codified as COMAR 08.13.09.13A—J, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .01 amended effective February 13, 1995 (22:3 Md. R. 152) Regulation .03C adopted effective February 13, 1995 (22:3 Md. R. 152) Regulation .04D adopted effective February 13, 1995 (22:3 Md. R. 152) Regulation .10 amended effective February 13, 1995 (22:3 Md. R. 152) Regulations .11 and .12 adopted effective February 13, 1995 (22:3 Md. R. 152) Chapter recodified from COMAR 08.20.13 to COMAR 26.20.13, June 1996 Regulation .05 amended effective March 14, 2005 (32:5 Md. R. 581) Regulation .07 amended effective March 14, 2005 (32:5 Md. R. 581) Regulation .09D adopted effective March 14, 2005 (32:5 Md. R. 581) After an application for a new, revised, or renewed permit to conduct surface coal mining and reclamation operations has been approved, but before the permit is issued, the operator shall file a performance bond with the Bureau, as required by Environment Article, §15-507, Annotated Code of Maryland. The bond covers the entire approved area or an identified increment of land within the approved area upon which the operator shall initiate and conduct surface coal mining and reclamation operations. The bond shall be payable to the State, shall be on forms provided by the Bureau, and shall be conditioned upon the permittee faithfully performing every requirement of Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, the permit, and the reclamation plan. An operator may not disturb surface acreage or extend any underground shafts, tunnels, or operations before receipt of approval from the Bureau of the performance bonds covering the surface acreage to be affected. Liability on the performance bonds shall cover all surface coal mining and reclamation operations to be conducted within the permit area during the life of the mine. After the amount of the bonds has been determined for the permit area, the operator may either file the entire amount of bond required during the term of the permit, or an incremental bond schedule and the amount of bond required for the first increment in the schedule. When the operator elects to file the amount of the bond in increments, he shall identify the initial and successive incremental areas for bonding on the permit application map submitted under COMAR 26.20.02. Before issuing the permit, the Bureau shall determine the bond amount required for the initial incremental area and the operator shall file the bond on the initial incremental area of the permit. The operator shall file with the Bureau the required bond amount for succeeding increments before initiating surface coal mining and reclamation operations on the increments. In accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Bureau may accept either: A surety bond executed by the operator and a corporate surety licensed to do business in the State; or A collateral bond in one of the following forms: A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the required bond amount, A certificate of deposit equal to the required bond, issued by a bank in the State and accompanied by a written agreement of the bank to pay on demand to the State, or An irrevocable letter of credit that is equivalent to the required bond, issued by a bank in the State that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture. The irrevocable letter of credit may not expire during the anticipated life of the mining activities and the reclamation period after that. The amount of the performance bonds required for a surface coal mining and reclamation permit shall be the estimated cost to perform the reclamation and restoration work required to achieve compliance with the Regulatory Program, and requirements of the permit, if the work had to be contracted out by the Bureau in the event of forfeiture. This amount shall be based on, but not limited to: The estimated costs submitted by the permittee; The additional estimated costs to the Bureau which may arise from applicable public contracting requirements, including the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation and restoration work; An additional amount based on factors of cost changes during the preceding 5 years for the types of activities associated with the reclamation to be performed; and Other cost information that may be required by or available to the Bureau. The minimum amount of the general bond shall be $1,500 per acre for the approved open acre limit. The minimum amount of the revegetation bond shall be $600 per acre of affected land. The minimum amount of the total bonds shall be $10,000 for the entire area under one permit. The amount of the performance bond liability applicable to a permit shall be adjusted by the Bureau as acreage in the permit area is revised, or when the cost of future reclamation or restoration work changes. The Bureau shall notify the permittee, the surety, and any person with a property interest in collateral who has requested notification in accordance with Regulation .06D of this chapter of any proposed bond adjustment and provide the permittee an opportunity for an informal conference on the adjustment. A permittee may request reduction of the required performance bond amount upon submission of evidence to the Bureau proving that the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the Bureau to complete the reclamation of the bond amount. The request shall be considered as a request for partial bond release. In addition, when the permittee submits the annual mining and reclamation progress report for a permit, the amount of bond required for the operation may be adjusted by the Bureau to the amounts required to assure completion of reclamation and revegetation. Liability under performance bonds applicable to a permit shall continue until all reclamation and restoration work required by the Regulatory Program and the provisions of the permit have been completed, and the permit terminated by the release of the permittee from any further liability. In addition, except on lands eligible for remining, the period of liability for a bond shall continue for a minimum period of not less than 5 years, beginning with the last year of augmented seeding, fertilizing, irrigation, or other work. The period of liability shall begin again when augmented seeding, fertilizing, irrigation, or other work is ordered by the Bureau to correct a failure to maintain the permanent vegetative cover required under COMAR 26.20.29 on the site. On lands eligible for remining included in permits issued before September 30, 2004, or any later date authorized by the federal Surface Mining Control and Reclamation Act, or any renewal thereof, the period of liability for a bond shall continue for a period of not less than 2 full years, beginning with the last year of augmented seeding, fertilizing, irrigation, or other work. The period of liability of not less than 2 full years shall begin again when augmented seeding, fertilizing, irrigation, or other work is ordered by the Bureau to correct a failure to maintain the permanent vegetative cover required under COMAR 26.20.29 on the site. If the Bureau approves a long-term intensive agricultural post-mining land use, the applicable period of liability shall commence at the date of initial planting for such long-term intensive agricultural land use. Surety bonds are subject to the following conditions: The Bureau may not accept the bond of a surety company unless the bond is totally noncancellable by the surety, regardless of time or reason, including but not limited to nonpayment of premium or bankruptcy of the permittee during the period of liability; The Bureau may provide in the bond that the amount shall be confessed to judgment upon forfeiture; The bond shall provide that the surety and the permittee shall be jointly and severally liable; The bond shall provide that: The surety will give prompt notice to the permittee and the Bureau of any notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging any violations of regulatory requirements which could result in suspension or revocation of the surety's license to do business; If the surety becomes unable to fulfill its obligations under the bond for any reason, notice shall be given immediately to the permittee and the Bureau. Collateral bonds shall be subject to the following conditions: The Bureau shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement; The Bureau shall value collateral at its current market value, not face value; The Bureau shall require that certificates of deposit be made payable to the Bureau, in writing, and upon the books of the bank issuing these certificates; The Bureau may not accept an individual certificate for a denomination in excess of $100,000, or maximum insurable amount as determined by FDIC; The Bureau shall require the bank issuing these certificates to waive all rights of setoff or liens which it has or might have against these certificates, and to agree in writing that these certificates are payable in full to the Bureau upon demand; The Bureau shall accept only automatically renewable certificates of deposit; The applicant shall deposit sufficient amounts of certificates of deposit, to assure that the Bureau will be able to liquidate those certificates before maturity, upon forfeiture, for the amount of the bond required; and The bank shall give prompt notice to the Bureau and the permittee of any notice received or action filed alleging: The insolvency or bankruptcy of the bank or the permittee, or Any violations of regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business. Letters of credit shall be subject to the following conditions: The letter may only be issued by a bank organized or authorized to do business in Maryland; The letter shall be irrevocable until released by the Bureau; The letter shall be payable to the Bureau in full upon demand and receipt from the Bureau of a notice of forfeiture; The Bureau may not accept a letter of credit in excess of 10 percent of the bank's capital surplus account as shown on a balance sheet certified by a certified public accountant, except when, before or at the time of issuance of the letter of credit, the issuing bank has set aside sufficient funds in a segregated deposit account, clearly marked for that purpose, to cover the bank's maximum liability under the letter of credit; The Bureau may not accept letters of credit from a single bank for any person on all permits held by that person in excess of three times the company's maximum single obligation, except when, before or at the time of issuance of the letter of credit, the issuing bank has set aside sufficient funds in a segregated deposit account, clearly marked for that purpose, to cover the bank's maximum liability under the additional letters of credit; Before accepting a letter of credit secured by a segregated deposited account, the Bureau shall require the bank issuing the letter of credit to execute a satisfactory waiver of all rights of setoff or liens which the bank has or might have against any segregated deposit account which secures the letter of credit; The Bureau may require in the letter of credit that the amount shall be confessed to judgment upon forfeiture; and The letter of credit shall provide that: The bank will give prompt notice to the permittee and the Bureau of any notice received or action filed alleging the insolvency or bankruptcy of the bank, or alleging any violations or regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business, and If the bank becomes unable to fulfill its obligations under the letter of credit for any reason, notice shall be given immediately to the permittee and the Bureau. A person with an interest in any collateral posted as a bond who desires notification of actions pursuant to the bond, shall request the notification, in writing, to the Bureau at the time the collateral is posted as bond. Upon the incapacity of a bank or surety company holding the bond by reason of bankruptcy, insolvency, or suspension or revocation of a charter or license, the permittee is considered to be without bond coverage and shall promptly notify the Bureau. The Bureau, upon receipt of notification shall notify, in writing, any permittee who is considered to be without bond coverage due to the bankruptcy, insolvency, or suspension or revocation of a charter or license of a bank or surety company and specify a reasonable period, not to exceed 90 days, to replace bond coverage and inform the permittee that additional acreage may not be disturbed on the permit. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations may not resume until the Bureau has determined that acceptable bond has been posted. The Bureau may allow permittees to replace existing surety or collateral bonds with other surety or collateral bonds, if the liability which has accrued against the permittee on the permit area is transferred to those replacement bonds. The Bureau may not release existing performance bonds until the permittee has submitted and the Bureau has approved acceptable replacement performance bonds. The Bureau may not release any liability under any performance bonds until it finds that the permittee has met the requirements of the applicable reclamation phase as defined in §E of this regulation. The Bureau may release portions of the liability under performance bonds applicable to a permit following completion of reclamation phases on portions of the permit. Acreage may be released from the permit area only after Reclamation Phase III has been completed on the entire permit. The Bureau may not release any liability under performance bonds applicable to a permit if the release would reduce the total remaining liability under performance bonds to an amount less than that necessary for the Bureau to complete the approved reclamation plan, achieve compliance with the requirements of the Regulatory Program or the permit, and abate any significant environmental harm to the air, water, or land resources or danger to the public health and safety which might occur before the release of all lands from the permit area. If the permit area includes an alternative postmining land use plan, the Bureau shall also retain sufficient liability for the Bureau to contract for any additional work which would be required to achieve compliance with the general standards for revegetation if the permittee fails to implement the approved alternative postmining land use plan within the 2 years required. The Bureau shall generally release liability under performance bonds in accordance with the following schedule: The portion of the bond submitted in accordance with Regulation .03C of this chapter may be released upon completion of all Reclamation Phase I work on the permit and the submission of a bond release application, unless the permittee requests a reduction of the open acre limit before the completion of all Reclamation Phase I work; For acreage on which Reclamation Phase II has been completed and for which a bond release application has been submitted, a portion of the bond for performance not to exceed 50 percent of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released; For acreage on which Reclamation Phase III has been completed and for which a bond release application has been submitted, the remaining amount of bond equal to 50 percent of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released; On lands eligible for remining, for acreage on which Reclamation Phases II and III have been completed and for which a bond release application has been submitted, bond in the amount of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released. For the purposes of this chapter: Reclamation Phase I is deemed to have been completed when the permittee completes backfilling, regrading, topsoil replacement, seeding, mulching, and drainage control in accordance with the approved reclamation plan. Reclamation Phase II is deemed to have been completed when: Revegetation has been established in accordance with the approved reclamation plan and the standards for the success of revegetation are met; The lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of the Regulatory Program, or the permit; With respect to prime farmlands, soil productivity has been returned to the level of yield required; The provisions of a plan approved by the Bureau for the sound future management of any permanent impoundment by the permittee or land owner have been implemented to the satisfaction of the Bureau; The Land Reclamation Committee has inspected and approved the revegetation of the area; and All temporary drainage control structures not authorized to remain on the permit area to be released are removed and the affected area regraded, seeded, mulched, or all permanent structures are inspected and their deficiencies repaired by the operator. Reclamation Phase III is deemed to have been completed when the permittee has successfully completed surface coal mining and reclamation operations in accordance with the approved reclamation plan and achieved compliance with the requirements of the Regulatory Program, the permit, and the applicable liability period has expired. Application for Release. The permittee may file an application with the Bureau for release of all or part of the bond required under Regulation .01A of this chapter for a particular permit in accordance with Regulation .08D of this chapter. Applications may be filed only at times or seasons that allow the Bureau to evaluate properly the reclamation operations presented in the applications as having been completed. These times and seasons will be identified by the Bureau. The application shall include copies of letters sent to adjoining property owners, surface owners, local government bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality of the permit area, notifying them of: The permittee's intention to seek release of performance bonds; and The permittee's opportunity to submit comments or objections, or request an informal conference. For the purpose of §A(2) of this regulation, “adjoining property owners” means a property owner whose property touches or bounds the permit area, or whose property boundary is within 300 feet of the permit area. Within 30 days after filing the application for release, the permittee shall submit proof of publication of the advertisement required by §B of this regulation. The proof of advertisement shall be considered part of the bond release application. The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, and the approved reclamation plan. A certification shall be submitted for each application or phase of bond release. Advertisement of Filing of Application. At the time of filing of an application for bond release, the permittee shall advertise the filing of the application in a newspaper of general circulation in the county of the permit area. The advertisement shall: Be placed in the newspaper at least once a week for 4 consecutive weeks; Identify the name of the permittee, the number of the permit and the issuance date of the permit; Identify the location and the number of acres of the lands subject to the application; Identify the type and amount of bond filed on the permit and the total amount of bond for which release is sought; Identify the type and dates of reclamation work performed; and State that written comments or objections may be submitted to the office of the Bureau, provide the address of the Bureau's office, and the closing date by which comments, objections, and requests must be received. Written comments, objections, or requests for an informal conference to a proposed bond release may be filed with the Bureau by any person within 30 days following the last advertisement of the filing of the application. Inspection by the Bureau. The Bureau shall inspect and evaluate the reclamation work involved within 30 days after receiving a complete application for bond release, or as soon after that as weather conditions permit. The surface owner, or agent, or lessee shall be given notice of this inspection and may participate with the Bureau in making the inspection. Informal Conferences. The Bureau shall schedule a conference if written objections are filed and a conference is requested. The conference shall be held at the offices of the Bureau. Notice of an informal conference shall be published in a newspaper of general circulation in the locality of the conference, at least 2 weeks before the date of the conference. The Bureau shall set a date for inspection of the permit area by any party to an informal conference, and include information on participation in this inspection in the notice published under §E(2) of this regulation. The informal conference shall be held within 30 days from the date of notice. An electronic or stenographic record shall be made of the conference and the record maintained for access by the parties, until final release of the bond. In determining whether to release all or part of a bond, the Bureau shall consider: Whether the permittee has met the criteria for release; The degree of difficulty in completing any remaining reclamation, or restoration work: and Whether pollution of surface and subsurface water is occurring, the probability of future pollution or the continuance of any present pollution, and the estimated cost of abating any pollution. If no informal conference has been held, the Bureau shall notify the permittee, anyone who filed comments or objections, and any other known interested parties, in writing, of its decision as to whether to release all or part of the bond within 60 days from the receipt of the completed application, or within 30 days from the close of the public comment period, whichever occurs last. If there has been an informal conference, the notification of the decision shall be made to the permittee and all interested parties within 30 days after conclusion of the conference. The notice of the decision shall state the reasons for the decision, recommend any corrective actions necessary to secure the release, and indicate the requirements for requesting an adjudicatory hearing pursuant to Regulation .11 of this chapter. The Bureau may not release a bond until: The town, city, or other municipality nearest to the operation, or the county in which the operation is located, has received at least 30 days notice of a proposed release by certified mail; and The right to request an adjudicatory hearing has not been exercised, or a final decision of the Bureau has been entered approving the release after an adjudicatory hearing. Within 30 days of receipt of notice of a decision by the Bureau on a bond release application, the permittee or any person adversely affected by the decision may request an adjudicatory hearing. Adjudicatory hearings shall be held in accordance with the procedures contained in COMAR 26.20.34. The party seeking to reverse the decision of the Bureau shall have the burden of proof. The Bureau shall render a final decision on bond release within 60 days of the completion of an adjudicatory hearing. Bonds may be forfeited if the Bureau finds any of the following: The permittee has violated any of the terms or conditions of the bond; The permittee has failed to conduct mining operations in accordance with the conditions of the permit and the Regulatory Program; The permit for the area under bond has been revoked, unless the operator assumes liability for completion of reclamation work; The permittee has become insolvent, failed in business, been adjudicated a bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court; A creditor of the permittee has attached or executed a judgment against the permittee's equipment, materials, or facilities at the permit area; or The permittee cannot demonstrate or prove the ability to continue to operate in compliance with the Regulatory Program and the permit. Bond forfeiture shall be in accordance with the procedures contained in COMAR 26.20.33. An operator may not engage in open-pit mining if he has forfeited any prior bond posted under the Regulatory Program. A permit may not be issued to an applicant owned or controlled by someone who has forfeited a bond. In the event the forfeited bond is insufficient to pay for the full cost of reclamation, the permittee shall be liable for remaining costs. The Bureau may: Complete or authorize completion of reclamation of the permit area; and Recover from the permittee all costs of reclamation in excess of the amount forfeited. Deep mine operations in the State shall comply with all of the bonding provisions of this chapter unless specifically indicated otherwise in this regulation. This requirement is independent of and in addition to any bonding requirements for these operations under the deep mining provisions of Environment Article, Title 15, Subtitle 6, Annotated Code of Maryland. The amount of bond under this chapter shall be calculated with respect to the general surface effects of deep mining controlled by these regulations, and any special considerations as provided in COMAR 26.20.13. Bond liability with respect to subsidence shall cover all effects of planned subsidence, and measures undertaken to prevent damage to surface facilities, including construction, site preparation, and relocations. Release of bond coverage for damage from planned subsidence may be obtained upon final inspection and approval by the Bureau, and without regard to the liability period of Regulation .05 of this chapter or criteria for release in Regulation .08 of this chapter. When subsidence-related material damage to land, structures, or facilities protected under COMAR 26.20.13.09 occurs, or when contamination, diminution, or interruption to a water supply protected under COMAR 26.20.13.05C occurs, the Bureau shall require the permittee to obtain additional performance bond until the repair, compensation, or replacement is completed, in the amount of: The estimated cost of the repairs, if the permittee will be repairing; The decrease in value, if the permittee will be compensating the owner; or The estimated cost to replace the water supply, if the permittee will be replacing the water supply. If the repair, compensation, or replacement is completed within 90 days of the occurrence of damage, no additional bond is required. The Bureau may extend the requirement to post bond beyond 90 days, but not to exceed 1 year, if the permittee demonstrates and the Bureau finds, in writing: One of the following: That subsidence is not complete; That not all probable subsidence-related material damage has occurred to lands or protected structures; or That not all reasonably anticipated changes have occurred affecting the protected water supply; and That it would be unreasonable to complete the repair of the subsidence-related material damage to lands or protected structures, or the replacement of protected water supply, within 90 days. Environment Article, §§15-503 and 15-603, Annotated Code of Maryland Effective date: Regulations .01—.13 were previously codified as COMAR 08.13.09.15A—M, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .01 amended effective August 15, 1994 (21:16 Md. R. 1382) Regulation .05B amended effective August 15, 1994 (21:16 Md. R. 1382) Regulation .08 amended effective August 15, 1994 (21:16 Md. R. 1382) Regulation .09 amended effective August 15, 1994 (21:16 Md. R. 1382) Regulation .10 repealed effective August 15, 1994 (21:16 Md. R. 1382) Regulation .13 amended effective February 13, 1995 (22:3 Md. R. 152) Regulation .13A amended effective August 15, 1994 (21:16 Md. R. 1382) Chapter recodified from COMAR 08.20.14 to COMAR 26.20.14, June 1996 Regulation .04 amended effective March 22, 1999 (26:6 Md. R. 488) Regulation .05 amended effective March 22, 1999 (26:6 Md. R. 488) Regulation .06 amended effective March 22, 1999 (26:6 Md. R. 488) Regulation .08D amended effective March 22, 1999 (26:6 Md. R. 488) Regulation .09A amended effective July 8, 2002 (29:13 Md. R. 993) Regulation .09B amended effective March 22, 1999 (26:6 Md. R. 488) Regulation .12D adopted effective March 22, 1999 (26:6 Md. R. 488) Regulation .13D, E adopted effective March 14, 2005 (32:5 Md. R. 581) Each applicant for a permit shall submit to the Bureau, as part of the permit application, a certificate, issued by an insurance company authorized to do business in the United States, certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operation for which the permit is sought. The applicant's public liability insurance policy shall provide for personal injury and property damage protection in an amount adequate to compensate all persons entitled to compensation under the applicable provisions of State law for injury or property damage as a result of surface coal mining and reclamation operations, including use of explosives and damage to water wells. Minimum insurance coverage for bodily injury shall be $300,000 per occurrence, $500,000 aggregate, and for property damage shall be $300,000 per occurrence, $500,000 aggregate. The policy shall be maintained in full force during the life of the permit. The policy shall require that the insuror notify the Bureau whenever substantive changes are made, and before any termination. Deep mining operations shall obtain identical insurance coverage for all surface effects, including subsidence as outlined in COMAR 26.20.13. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.03 were previously codified as COMAR 08.13.09.16A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.15 to COMAR 26.20.15, June 1996 In this chapter, the following terms have the meanings indicated. Terms Defined. “Monitoring” means the collection of environmental data by either continuous or periodic sampling methods. “Probable cumulative impact” means the expected total qualitative and quantitative direct and indirect effects of mining and reclamation activities on the hydrologic regime. “Probable hydrologic consequence” mean the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the surface or ground water flow, timing and pattern; the stream channel conditions; and the aquatic habitat on the permit area and other affected areas. “Qualified laboratory” means a designated public agency, private consulting firm, or analytical laboratory which can provide the required determination or statement under Regulation .06 of this chapter. For eligible operators who request assistance, to the extent possible with available funds, the Department shall select and pay a qualified laboratory or other qualified entity to provide the following services: The determination of the probable hydrologic consequences of the surface mining and reclamation operation in the proposed permit area and adjacent areas, including the engineering and designs necessary for the determination in accordance with COMAR 08.20.02.08; The drilling and statement of the results of test borings or core samplings for the proposed permit area in accordance with COMAR 08.20.02.07; The development of cross-sectional maps and plans required by COMAR 08.20.02.11; The collection of archeological and historic information and related plans required by COMAR 08.20.02.05 and any other archeological and historic information required by the Department; Pre-blast surveys required by COMAR 08.20.22.02; The collection of site-specific resources information for fish and wildlife and other environmental values required by COMAR 08.20.02.09; and The production of protection and enhancement plans for fish and wildlife habitats required by COMAR 08.20.02.13H and other environmental values required by COMAR 08.20.02.09. The information provided shall be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area. An applicant is eligible for assistance if the applicant: Intends to apply for a permit; Establishes that the probable attributed annual production from all locations on which the operator is issued a surface coal mining and reclamation permit does not exceed 300,000 tons; Is not restricted in any manner from receiving a permit under the permanent Regulatory Program; and Does not organize or reorganize a company solely for the purpose of obtaining assistance under the Small Operators Assistance Program (SOAP). Production from the following operations shall be attributed to the applicant: The pro rata share, based upon percentage of ownership of the applicant, of coal produced by operations in which the applicant owns more than a 10 percent interest; The pro rata share, based upon percentage of ownership of applicant, of coal produced in other operations by persons who own more than 10 percent of the applicant's operation; All coal produced by operations owned by persons who directly or indirectly control the applicant by reason of direction of the management; All coal produced by operations owned by members of the applicant's family and the applicant's relatives, unless it is established that there is no direct or indirect business relationship between or among them. Each application for assistance under the Small Operators Assistance Program shall contain, at a minimum: A statement of intent to file a permit application. The names and addresses of the potential permit applicant, and of the potential operator if different from the applicant. A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant. The schedule shall include for each location: The name under which coal is or will be mined; The permit number and Mining Enforcement and Safety Administration identification number; The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant; and The estimated coal production for each year of the proposed permit and that portion attributed to the applicant. A description of: The method of surface coal mining operation proposed; The anticipated starting and termination dates of mining operations; The number of acres of land to be affected by the proposed mining; and A general statement on the probable depth and thickness of the coal resource, including a statement of reserves in the permit area and the method by which they were calculated. A U.S. Geological Survey topographic map of 1:24,000 scale or larger or other topographic map of equivalent detail which clearly shows: The area of land to be affected and the natural drainage above and below the affected area; The names of property owners within the area to be affected and of adjacent lands; The location of existing structures and developed water sources within the area to be affected and on adjacent lands; The location of existing and proposed test boring or core samplings; and The location and extent of known working of any underground mines. Copies of documents which show that: The applicant has a legal right to enter and commence mining within the permit area; and A legal right of entry has been obtained for the U.S. Office of Surface Mining, the Bureau, and laboratory personnel to inspect the lands to be mined and adjacent lands which may be affected to collect environmental data or install necessary instruments. If the Bureau finds the applicant eligible, and it does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it shall: Determine the minimum data requirements necessary to meet the requirements of Regulation .06 of this chapter; and Select the services of one or more qualified laboratories to perform the required work. A copy of the contract or other appropriate work order and the final approved report shall be provided to the applicant. The Bureau shall inform the applicant in writing if the application is denied and shall state the reasons for denial. The granting of assistance under this chapter may not be a factor in decisions by the Bureau on a subsequent permit application. General. This regulation describes the minimum requirements for the collection of data to meet the objective of the Small Operators Assistance Program. The Bureau shall determine the data collection requirements for each applicant or group of applicants. Data collection and analysis may proceed concurrently with the development of mining and reclamation plans by the operator. The data requirements will be based on: The extent of hydrologic and core analysis data for the applicable area currently available to the Bureau; and The data collection and analysis guidelines developed and provided by the U.S. Office of Surface Mining. Specific Provisions. A determination of the probable hydrologic consequences of the mining and reclamation operations, both on-site and off-site, shall be made by a qualified laboratory. The data for this determination shall include: The existing and projected surface and ground water seasonal flow regime, including water level and water table evaluations. The Bureau shall specify duration and return frequencies to be used in the determination. The existing and projected seasonal quality of the surface and ground water regime. This shall include measurements and estimates of dissolved and suspended solids, pH, iron, manganese, surface and channel erosion and other water quality parameters as specified by the Bureau. A statement of the result of test borings or core samplings from the proposed permit area, including: Logs from any drill holes including identification of each stratum and water level penetrated; The coal seam thickness and its chemical analysis including sulfur content; The chemical analysis of potentially acid-forming or toxic-forming sections of the overburden, and the chemical analysis of the stratum lying immediately underneath the coal to be mined. Exemptions. The statement by a qualified laboratory of the result of test borings or core samplings may be waived by the Bureau by a written determination that these requirements are unnecessary with respect to the specific permit application. Data availability. Data collected under this program shall be made available to all interested persons, except information related to the chemical and physical properties of coal. Information regarding the mineral or elemental content of the coal which is potentially toxic in the environment shall be made available. The Bureau shall establish and maintain at its office a list of qualified laboratories which may be used to provide the required determination or statement under this program. Inclusion in the List of Qualified Laboratories. Persons who desire to be included in the list of qualified laboratories established by the Bureau shall apply to the Bureau and provide the information necessary to establish the required qualifications. Basic Qualifications. To qualify for designation, the laboratory shall demonstrate that it: Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology, or chemistry applicable to the work to be performed; Is capable of collecting necessary field data and samples; Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage, and space to accommodate periods of peak work loads; Meets the requirements of the State safety and health program; Has the financial capability and business organization to perform the work required; Has analytical, monitoring, and measuring equipment capable of meeting the applicable standards and methods contained in “Standard Methods for the Examination of Water and Waste Water”, 14th Edition, 1975, or “Methods for Chemical Analysis of Water and Wastes”, 1974; Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic engineering or analytical methods, or by those appropriate methods or guidelines for data acquisition recommended by the Bureau. The qualified laboratory shall be capable of performing either the determination or statement. Subcontractors may be used to provide the services required provided their use is defined in the application for designation and approved by the Bureau. The applicant shall reimburse the Bureau for the cost of the services performed pursuant to this chapter if the applicant: Submits false information; Fails to submit a permit application within 1 year from the date of receipt of the approved laboratory report; Fails to mine after obtaining a permit; Is determined by the Bureau to have an actual and attributed annual production of coal exceeding 300,000 tons for all locations during the 12 months immediately following the date on which the operator is issued the permit; Sells, transfers, or assigns the permit to another person and the transferee's total actual and attributed production exceeds 300,000 tons during the 12 months immediately following the date on which the permit was originally issued. Under §A(5) of this regulation the applicant and its successor are jointly and severally obligated to reimburse the Bureau. The Bureau may waive the reimbursement obligation if it finds that the applicant at all times acted in good faith. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.08 were previously codified as COMAR 08.13.09.17A—H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.16 to COMAR 26.20.16, June 1996 Regulation .02A amended effective September 23, 1996 (23:19 Md. R. 1378) Regulation .03 amended effective September 23, 1996 (23:19 Md. R. 1378) Regulation .08 amended effective September 23, 1996 (23:19 Md. R. 1378) The permit application shall contain a description of each existing structure proposed to be used in connection with an operation. The description shall include: Location; Plans of the structure which describe its current condition; Approximate dates on which construction of the existing structure was begun and completed; and A showing, including relevant monitoring data or other evidence, that the structure meets either the performance standards of the Regulatory Program, or those performance standards of the Interim Regulatory Program which are at least as stringent as the performance standards of the Regulatory Program. Each structure shall comply with the performance standards and the design requirements of the Regulatory Program, except that an existing structure may be exempted from the design requirements if it meets: The performance standards of the Regulatory Program; or Those performance standards of the Interim Regulatory Program which are at least as stringent as the comparable performance standards of the Regulatory Program. The Bureau may grant exemptions, only as part of the permit application process, if it finds that no significant harm to the environment or public health or safety will result from use of the structure. An existing structure which does not meet a performance standard of the Regulatory Program, or a performance standard of the Interim Regulatory Program which is at least as stringent as the comparable performance standard of the Regulatory Program, shall be modified or reconstructed to meet the design standard of the Regulatory Program pursuant to a compliance plan, submitted by the applicant and approved by the Bureau, that includes: Design specifications for the modification or reconstruction of the structure to meet the design and performance standards of the Regulatory Program; A construction schedule which shows dates for beginning and completing interim steps and final reconstruction; Provisions for monitoring the structure during and after modification or reconstruction to ensure that the performance standards of the Regulatory Program are met; and A showing that the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction. Before issuance of the permit, the Bureau must find that: The compliance plan under §C of this regulation will bring the existing structure into compliance not later than 6 months after issuance of the permit; The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and The applicant will monitor the structure to determine compliance with the performance standards of the Regulatory Program. If the Bureau finds that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon and reclaim the existing structure. The structure may not be used for or to facilitate surface coal mining operations after the effective date of issuance of the Regulatory Program permit. Abandonment of the structure shall proceed on a schedule approved by the Bureau. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.20A, B—E, and F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.17 to COMAR 26.20.17, June 1996 All signs and markers shall: Be posted and maintained by the permittee; Be easily seen and read, and of a uniform design throughout the operation; Be made of durable material; Conform to local ordinances and codes; and Be maintained during the conduct of all activities to which they pertain. Permit identification signs shall: Be displayed at each point of access to the permit area from public roads; Contain information identifying the name, business address, and telephone number of the operator, the Bureau of Mines permit number, the Water Resources Administration discharge permit number, and NPDES discharge permit number; Be constructed of metal or wood and be a minimum of 2 feet by 2 feet, affixed to a suitably located tree, or a 2 inch diameter metal or wood post driven into the earth at least 3 feet with a minimum of 4 feet exposed; Be retained and maintained until after the release of all bonds for the permit area. All perimeter markers shall clearly mark the perimeter of the permit area before and during surface mining activities. The markers shall be, at a minimum, 2 inch diameter pipes or wood posts or metal posts driven into the earth with a minimum of 3 feet exposed to mark the beginning and ending points of the permit area and any other point necessary to clearly identify the permit area. They shall be identified by painting the exposed portion red or other color as indicated in the permit application. Other marker specifications may be used if approved by the Bureau. If blasting is conducted incident to surface mining activities, the permittee shall: Conspicuously display signs reading “Blasting Area” along the edge of any blasting area that comes within 50 feet of any road within the permit area, and within 100 feet of any public road right of way. Conspicuously flag or post within the blasting area, the immediate vicinity of charged holes. Place at all entrances to the permit area from public roads or highways conspicuous signs which state: “Blasting Area”, and which clearly explain the blast warning and all-clear signals that are in use, and the marking of blast areas and charged holes within the permit area. These signs shall be a minimum size of 2 feet by 4 feet. If topsoil or other vegetation-supporting material is segregated and stockpiled, the stockpiled material shall be clearly marked by a method described in the permit application. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.05 were previously codified as COMAR 08.13.09.21A—E, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.18 to COMAR 26.20.18, June 1996 Each road, as defined in COMAR 26.20.01.02B(82), shall be classified as either a primary road or an ancillary road. A primary road is any road which is: Used for transporting coal or spoil; Frequently used for access or other purposes for a period in excess of 6 months; or To be retained for an approved postmining land use. An ancillary road is any road not classified as a primary road. Each person who conducts surface mining activities shall locate, design, construct or reconstruct, utilize, and maintain roads and restore the area to meet the requirements of the Regulatory Program to: Control or prevent erosion, siltation, and the air pollution attendant to erosion, including road dust as well as dust occurring on other exposed surfaces, by measures such as vegetating, watering, using chemical or other dust suppressants, or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices; Control or prevent damage to fish, wildlife, or their habitat and related environmental values; Control or prevent additional contributions of suspended solids to stream flow or runoff outside the permit area; Neither cause nor contribute to, directly or indirectly, the violation of State or federal water quality standards applicable to receiving waters; Refrain from seriously altering the normal flow of water in stream beds or drainage channels; Prevent or control damage to public or private property, including the prevention or mitigation of adverse effects on lands within the boundaries of units of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including designated study rivers, and National Recreation Areas designated by Act of the U.S. Congress; and Use nonacid-forming and nontoxic-forming substances in road surfacing. All roads shall be removed and the land affected regarded and revegetated in accordance with the Regulatory Program unless: Retention of the road is approved as part of the approved postmining land use, or as being necessary to adequately control erosion; The necessary maintenance is assured; and All drainage is controlled. The plans and drawings for primary roads shall be prepared by, or under the direction of, and certified by a qualified registered professional engineer as meeting the requirements of this chapter and any prudent engineering practices. The construction or reconstruction of primary roads shall be certified in a report to the Bureau by a qualified registered professional engineer. The report shall indicate that the primary road has been constructed or reconstructed as designed and in accordance with the approved plan. Primary roads shall be located, insofar as possible, on the most stable available areas to minimize erosion. No part of any roads may be located in the channel of an intermittent or perennial stream unless specifically approved by the Bureau in accordance with the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02—.04. Stream fords on perennial or intermittent streams by primary roads are prohibited unless they are specifically approved by the Bureau as temporary routes during periods of construction. Roads shall be located to minimize downstream sedimentation and flooding. Seeding of Disturbed Area. All areas disturbed in the construction of the road, including all cut and fill slopes, shall be seeded and mulched at the earliest possible time during the first planting season after construction. Primary roads shall be designed and constructed or reconstructed in compliance with the standards of this regulation in order to control subsequent erosion and disturbance of the hydrologic balance. Vertical Alignment. Maximum road grades shall be as follows: The overall grade may not exceed 10:1 (10 percent); The maximum grade may not exceed 6.5:1 (15 percent); There may not be more than 300 feet of grade exceeding 10 percent within any consecutive 1,000 feet of a road but there may not be any grade over 15 percent. Road Cuts. Cut slopes may not be steeper than 1.5:1 in unconsolidated materials or 0.25:1 in rock, except that steeper slopes may be authorized by the Bureau. Road Embankments. Embankment sections shall be constructed in accordance with the provisions of this section: All vegetative material and topsoil shall be removed from the embankment foundation during construction to increase stability, and vegetative material or topsoil may not be placed beneath or in any road embankment. Each layer of the embankment shall be leveled and compacted before the succeeding layer is placed. Loads of material shall be leveled as placed and kept smooth. The successive layers shall be compacted evenly by routing the hauling and leveling equipment over the entire width of the embankment. This procedure shall be continued until no visible horizontal movement of the embankment material is apparent. Embankment slopes may not be steeper than 2:1, except that where the embankment material is a minimum of 85 percent rock, slopes may not be steeper than 1.5:1. The road surface shall be sloped toward the ditch line, at a minimum rate of 1/2 inch per foot of surface width, or crowned at a minimum rate of 1/2 inch per foot of surface width as measured from the centerline of the road. All material used in embankments shall be reasonably free of organic material, coal or coal blossom, frozen materials, wet or peat material, natural soils containing organic matter, or any other material considered unsuitable by the Bureau. Excess or unsuitable material from excavations, and acid- forming and toxic-forming material shall be disposed of as required by the Bureau. Acid-producing materials shall be permitted for constructing embankments for only those roads constructed or reconstructed on coal processing waste banks, and only if it has been demonstrated to the Bureau that no additional acid will leave the confines of the coal processing waste bank. Acid-bearing refuse material may not be used outside the confines of the coal processing waste bank. Each primary road embankment shall have a minimum static safety factor of 1.3. Each road embankment shall be constructed of fill material that contains sufficient moisture content to achieve proper compaction. A primary road embankment that is designed and constructed to meet the criteria of this section with an embankment slope not steeper than 2:1 and a foundation slope equal to or less than 25 percent shall be considered to meet the minimum static safety factor under §D(9) of this regulation. Topsoil Removal. Before initiation of construction or reconstruction of a road, topsoil shall be removed from the design roadbed, shoulders, and surfaces where associated structures will be placed and handled in accordance with COMAR 26.20.25.02. General. Each primary road shall be designed, constructed or reconstructed, and maintained to have adequate drainage, using structures such as but not limited to bridges, ditches, cross drains, and ditch relief drains. The drainage control system shall be designed to safely pass peak runoff from a 2-year, 24-hour precipitation event. Drainage pipes and culverts shall be installed as designed and maintained in a free and operating condition and to prevent or control erosion at inlets and outlets. Drainage ditches shall be constructed and maintained to prevent uncontrolled drainage over the road surface and embankment. Culverts shall be installed and maintained to sustain the vertical soil pressure, the passive resistance of the foundation, and the weight of vehicles using the road. Ditches. A ditch shall be provided on both sides of a through-cut and on the inside shoulder of a cut-and-fill section, with ditch relief cross drains spaced according to a grade. Water shall be intercepted before reaching a switchback or large fill and drained safely away. Water from a fill or switchback shall be released below the fill, through conduits or in riprapped channels, and may not be discharged onto the fill. Drainage ditches shall be placed at the toe of all cut slopes formed by the construction of roads. Culverts. Culverts shall be designed to safely pass a 2-year, 24-hour precipitation event. The applicant shall be responsible for obtaining all other local, State, and federal permits pertaining to waterway crossings or obstructions. Drainage pipes and culverts shall be constructed to avoid plugging, collapse, or erosion at inlets and outlets. Culvert openings installed on the road may not be less than 12 inches in diameter. All culverts shall be covered by compacted fill to a minimum of 1 foot, or half the culvert diameter, whichever is greater. Culverts for road-surface drainage only shall be constructed in accordance with the following: Spacing may not exceed 1,000 feet on grades of 0 to 3 percent; Spacing may not exceed 800 feet on grades of 3 to 6 percent; Spacing may not exceed 300 feet on grades of 6 to 10 percent; Spacing may not exceed 200 feet on grades of 10 percent or greater; Culverts at closer intervals than the maximum listed above shall be installed if required by the Bureau as appropriate for the erosive properties of the soil or to accommodate flow from small intersecting drainages; Culverts may be constructed at greater intervals than the maximum if authorized by the Bureau upon a finding that greater spacing will not increase erosion; The inlet end shall be protected by a rock headwall or other material approved by the Bureau as adequate protection against erosion of the headwall. The water shall be discharged below the toe of the fill through conduits or in riprapped channels and may not be discharged onto the fill. If it is necessary to control sediment, culverts shall have a vertical riser on the inlet end. The top of the riser shall be lower than the centerline of the road to ensure adequate freeboard (a minimum of 1 foot is recommended). These structures shall be maintained and cleaned out when the sediment reaches 60 percent of their capacity. Natural Drainage. Natural channel drainageways may not be altered or relocated for road construction or reconstruction without the prior approval of the Bureau. The Bureau may approve alterations and relocations only if: The natural channel drainage is not blocked; No significant damage occurs to the hydrologic balance; and There is no adverse impact on adjoining landowners. Stream Crossings. Drainage structures are required for stream channel crossings. Drainage structures may not affect the normal flow of gradient of the stream, or adversely affect fish migration and aquatic habitat or related environmental values. The applicant shall be responsible for obtaining all other local, State, and federal permits pertaining to waterway crossings or obstructions. Roads shall be surfaced with material approved by the Bureau as sufficiently durable for the anticipated volume of traffic, and weight and speed of vehicles to be used. Acid-forming or toxic-forming substances may not be used in road surfacing. Roads and related structures shall be maintained in such a manner that the required or approved design standards are met throughout their entire period of use. Access and haul roads shall be maintained to eliminate water accumulation on the surface, rutting, and dust. Ditches, culverts, drains, debris basins, and any sediment control structure may not be blocked in any manner that impedes drainage or adversely affects the intended purpose of the structure. A road damaged by a catastrophic event, such as a flood, shall be repaired as soon as is practicable after the damage has occurred. A road not to be retained under an approved postmining land use shall be reclaimed in accordance with the approved reclamation plan as soon as practicable after it is no longer needed for mining and reclamation operations. This reclamation shall include: Closing the road to traffic; Removing all bridges and culverts, unless approved as part of the postmining land use; Removing or disposing of road surfacing materials that are incompatible with the postmining land use and revegetation requirements; Reshaping cut and fill slopes as necessary to be compatible with the postmining land use and to complement the natural drainage pattern of the surrounding terrain; Protecting the natural drainage pattern by installing dikes or cross drains, as necessary, to control surface runoff and erosion; and Scarifying or ripping the roadbed, replacing topsoil or substitute material, and revegetating disturbed surfaces. Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities shall be designed, constructed or reconstructed, and maintained, and the area restored in order to: Prevent damage to fish, wildlife, and related environmental values; Prevent additional contributions of suspended solids to streamflow or runoff outside the permit area; any contributions may not be in excess of the effluent limitations of the Regulatory Program; Control and minimize diminution or degradation of water quality and quantity; Control and minimize erosion and siltation; Control and minimize air pollution; Prevent damage to public or private property. Support facilities required for, or used incidental to, the operation of the mine, including but not limited to mine buildings, coal loading facilities at or near the mine site, coal storage facilities, equipment-storage facilities, fan buildings, preparation plants, sheds, shops, and other buildings, shall be designed, constructed or reconstructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property. Support facilities shall be designed, constructed or reconstructed, maintained, and used in a manner which prevents: Damage to fish, wildlife, and related environmental values. To the extent possible, additional contributions of suspended solids to streamflow or runoff outside the permit area. Any contributions may not be in excess of the effluent limitations of the Regulatory Program. All surface mining activities shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless approved by the owner of those facilities and the Bureau. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.07 and .08—.09 were previously codified as COMAR 08.13.09.22A—G and V—W, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.19 to COMAR 26.20.19, June 1996 Chapter revised effective February 5, 2001 (28:2 Md. R. 105) Backfilled materials shall be placed so as to: Minimize contamination of ground water systems with acid, toxic, or otherwise harmful mine drainage; Minimize adverse effects of mining on ground water systems outside the permit area; and Support approved postmining land uses. Pits, cuts, and other mine excavations or disturbances shall be located, designed, constructed, and utilized in such a manner as to prevent or control discharge of acid, toxic, or otherwise harmful mine drainage waters into ground water systems, and to prevent adverse impacts on the ground water systems or on approved postmining land uses. Surface mining activities shall be conducted in a manner that facilities restoration of the approximate pre-mining recharge capacity, through restoration of the capability of the reclaimed areas as a whole (excluding coal processing waste and underground development waste disposal areas and fills) to transmit water to the ground water system. The recharge capacity shall be restored to a condition which: Supports the approved postmining land use; Minimizes disturbances to the prevailing hydrologic balance in the mine plan area and in adjacent areas; and Provides a rate of recharge that approximates the pre-mining recharge rate. Land within 100 feet of a perennial stream or an intermittent stream may not be disturbed by surface mining activities unless the Bureau specifically authorizes surface mining activities closer to or through such a stream. The Bureau may authorize the surface mining activities closer to or through a stream upon finding that: The activities will not cause or contribute to the violation of applicable State or federal water quality standards; The activities will not adversely affect the water quantity and quality or other environmental resources of the stream; and If there will be a temporary or permanent stream-channel diversion, the stream-channel diversion will comply with COMAR 26.20.21.04. Ground water monitoring shall be conducted according to the ground water monitoring plan approved under COMAR 26.20.02.13R. Frequency of Monitoring Ground Water. The frequency of monitoring ground water at the approved monitoring location or locations shall be once every calendar quarter unless more frequent monitoring is required by the Bureau. Ground water monitoring data shall be submitted to the Bureau within 28 days of the end of the quarter. The samples for consecutive quarters shall be collected at a minimum of 60-day intervals. If an analysis of a ground water sample indicates noncompliance with a permit condition, the operator shall promptly notify the Bureau and immediately take the actions provided for in COMAR 26.20.02.13N, O, and P and 26.20.05.03C. At a minimum, the following parameters shall be monitored at each monitoring location: Specific conductance corrected to 25°C, or total dissolved solids in milligrams per liter; Total suspended solids in milligrams per liter; Acidity and alkalinity; pH in standard units; Total iron in milligrams per liter; Total manganese in milligrams per liter; Sulfates; Depth to water, rates of discharge, or usage, as appropriate; and Other parameters required by the Bureau. Ground water monitoring shall proceed through mining and continue during reclamation until bond release or until the operator demonstrates, using the monitoring data obtained under this regulation, that: The operation has minimized disturbances of the hydrologic balance both onsite and offsite, water availability and quality are suitable to support approved postmining land uses, and the water rights of other users have been protected or replaced; or Monitoring is no longer necessary to achieve the purposes of the monitoring plan. When surface mining activities may affect the ground water systems which serve as aquifers which significantly impact the hydrologic balance of water use on or off the mine plan area, ground water levels and ground water quality shall be periodically monitored. Monitoring shall include a sufficient number of measurements from wells, and mineralogical and chemical analyses of aquifers, overburden, and spoil to reflect changes in ground water quantity and quality. Monitoring shall be adequate to plan for modification of surface mining activities, if necessary, to minimize disturbance of the prevailing hydrologic balance. As required by the Bureau, the person who conducts surface mining activities shall conduct additional hydrologic tests, including drilling, infiltration tests, and aquifer tests, and shall submit the results to the Bureau, to demonstrate compliance with the Regulatory Program. The Bureau may waive the ground water monitoring requirements under §§A—D of this regulation when it is not feasible to determine pre-mining ground water conditions because: Previous surface or deep mines, or both, within the permit area or adjacent area have affected ground water quantity or quality; Deep mine underdrainage has resulted in an absence of ground water within the stratigraphic sequence of the proposed mining operation; A preexisting mine operation, with a significant degree of completion, has affected ground water quantity or quality and the effects of the proposed mine operation would be inseparable from previous mining impacts; The location of the mining operation with respect to topographic or stratigraphic constraints, or both, precludes the installation of an effective monitoring system. Surface water monitoring shall be conducted according to the surface water monitoring plan approved under COMAR 26.20.02.13S. Monitoring of Surface Water. The frequency of monitoring surface water at the approved monitoring location or locations shall be once every calendar quarter unless more frequent monitoring is required by the Bureau. The samples for consecutive quarters shall be collected at a minimum of 60-day intervals. Surface water monitoring data shall be submitted to the Bureau within 28 days of the end of the quarter. At a minimum, the following parameters shall be monitored at each monitoring location: Specific conductance corrected to 25°C or total dissolved solids in milligrams per liter; Total suspended solids in milligrams per liter; Acidity and alkalinity; pH in standard units; Total iron in milligrams per liter; Total manganese in milligrams per liter; Sulfates; Flows; and Other parameters required by the Bureau. Monitoring of Discharges in Accordance with NPDES Permits. Discharges from the permit area shall be monitored in accordance with National Pollutant Discharge Elimination System (NPDES) permits issued by the Maryland Department of the Environment. The person who conducts the surface mine activities shall submit to the Bureau, on the same time schedule as required by the NPDES permit, either a copy of the completed reporting form filed to meet NPDES permit requirements or a letter identifying the State government official with whom the reporting form was filed to meet NPDES permit requirements and the date of the filing. In all cases in which the analytical results of the sample collections indicate that noncompliance with a permit condition or applicable standard has occurred, the person conducting the surface mining activities shall notify the Bureau immediately, and immediately take the actions provided for in COMAR 26.20.02.13N, O, and P and 26.20.05.03C. Surface water monitoring shall proceed through mining and continue during reclamation until bond release. The Bureau may modify the monitoring requirements, including the parameters covered and the sampling frequency, if the operator demonstrates that the: Operation has minimized disturbance to the hydrologic balance in the permit area and adjacent areas and prevented material damage to the hydrologic balance outside the permit area; Water quality and quantity are suitable to support approved postmining land uses; Postmining water quantity and quality is not adversely impacting identified water users and is not expected to adversely impact identified water users; and Water supply of any adversely impacted water users has been replaced. The Bureau may modify the surface water monitoring requirements, including the parameters covered and sampling frequency, if the operator demonstrates that the monitoring is no longer necessary to achieve the purpose of the monitoring plan. Equipment, structures, and other devices necessary to measure and accurately sample the quality and quantity of surface water discharges from the disturbed area shall be properly installed, maintained, and operated, and shall be removed when no longer required. Each prospect hole, other drill or borehole, well, or other exposed underground opening shall be cased, sealed, or otherwise managed, as approved by the Bureau, to prevent acid or other toxic drainage from entering ground or surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure the safety of people, livestock, fish and wildlife, and machinery in the mine plan and adjacent area. If these openings are uncovered or exposed by surface mining activities within the permit area they shall be permanently closed, unless approved for water monitoring, or otherwise managed in a manner approved by the Bureau. This does not apply to holes drilled and used only for blasting. Prospect holes, other drill or boreholes, wells, and other exposed underground openings, which have been identified in the approved permit application for use in returning coal processing waste or water to underground workings, or which are to be used to monitor ground water conditions, shall be temporarily sealed before use and protected during use by barricades, fences, or other protective devices approved by the Bureau. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the surface mining activities. When no longer needed for monitoring or other use approved by the Bureau, unless approved for transfer as a water well, each prospect hole, other drilled hole or borehole, well, and other exposed underground opening shall be capped, sealed, backfilled, or otherwise properly managed, as required by the Bureau in accordance with the Regulatory Program. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish, wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters. A prospect or monitoring well may only be transferred by the person who conducts surface mining activities for further use as a water well with the prior approval of the Bureau and in accordance with State and local law. That person and the surface owner of the lands where the well is located shall jointly submit a written request to the Bureau for that approval. Upon an approved transfer of a well, the transferee shall: Assume primary liability for damages to persons or property from the well; Plug the well when necessary, but not later than abandonment of the well; and Assume primary responsibility for compliance with the Regulatory Program with respect to the well. Upon an approved transfer of a well, the transferor shall be secondarily liable for the transferee's obligations under §B of this regulation, until release of the bond or other equivalent guarantee required by the Regulatory Program for the area in which the well is located. Surface water, or water from another underground mine, may not be diverted or otherwise discharged into underground mine workings, unless the person who conducts the surface mining activities demonstrates to the Bureau that this will: Abate water pollution or otherwise eliminate public hazards resulting from surface mining activities, and prevent material damage outside the permit area; Be discharged as a controlled flow, meeting the effluent limitations of the Regulatory Program for pH and total suspended solids; however, the pH and total suspended solids limitations may be exceeded if approved by the Bureau and limited to: Coal processing waste, Fly ash from a coal-fired facility, Sludge from an acid mine drainage treatment facility, Flue gas desulfurization sludge, Inert materials used for stabilizing underground mines, or Underground mine development wastes; Minimize disturbance to the hydrologic balance; Meet with the approval of the Mine Safety and Health Administration; Not cause, result in, or contribute to a violation of applicable water quality standards or effluent limitations. Any person who conducts surface mining activities shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source when this supply has been affected by contamination, diminution, or interruption proximately resulting from surface mining activities. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.11 were previously codified as COMAR 08.13.09.23A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulations .03—.05, .09A, and .10A amended effective October 23, 1995 (22:21 Md. R. 1614) Chapter recodified from COMAR 08.20.20 to COMAR 26.20.20, June 1996 Surface mining activities shall be planned and conducted to minimize changes to the prevailing hydrologic balance in both the mine plan and adjacent areas, in order to prevent long-term adverse changes in that balance that could result from those activities. Changes in the depth to ground water, in water quality and quantity, and in the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected. Federal and State water quality statutes, regulations, standards, or effluent limitations may not be violated. Operations shall be conducted to minimize water pollution, and treatment methods shall be used to control water pollution where necessary. Mining activities shall emphasize mining and reclamation practices that prevent or minimize water pollution. The Bureau may require that water accumulated in a pit be removed and the pit maintained in a dewatered condition whenever water quality or spoil stability is affected or before the approval of temporary cessation of mining activities. In this chapter, the following document is incorporated by reference. Document Incorporated. U.S. Department of Agriculture, Soil Conservation Service Technical Release No. 60 (210-VI-TR60, October, 1985), “Earth Dams and Reservoirs”, (TR-60). If drainage from the disturbed areas is mixing with drainage from other areas not disturbed by current surface coal mining and reclamation operations, the permittee shall achieve the effluent limitation set forth below for all the mixed drainage when it leaves the permit area. Discharges of water from areas disturbed by surface mining shall be made in compliance with applicable State laws and regulations, the federal Clean Water Act, and with effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR 434. Adequate facilities shall be installed, operated, and maintained to treat any water discharged from the disturbed area so that it complies with all federal and States laws and regulations and the limitations of this regulation. If the pH of water to be discharged from the disturbed area is less than 6.0, an automatic lime feeder or other automatic neutralization process approved by the Bureau shall be installed, operated, and maintained. The Bureau may authorize the use of a manual system if it finds that: Flow is infrequent and presents small and infrequent treatment requirements to meet applicable standards which do not require use of an automatic neutralization process; and Timely and consistent treatment is ensured. Overland flow, including flow through litter, and shallow ground water flow from undisturbed areas, and flow in ephemeral streams, may be diverted away from disturbed areas by means of temporary or permanent diversions, if required or approved by the Bureau as necessary to minimize erosion, to reduce the volume of water to be treated, and to prevent or remove water from contact with acid-forming or toxic-forming materials. The following requirements shall be met for all diversions and for all collection drains that are used to transport water into water treatment facilities and for all diversions of overland and shallow ground water flow and ephemeral streams: Temporary diversions shall be constructed to pass safely the peak runoff from a 2-year, 24-hour precipitation event with sufficient freeboard to pass a 10-year, 24-hour precipitation event or a larger event as specified by the Bureau. To protect fills and property and to avoid danger to public health and safety, permanent diversion shall be constructed to pass safely the peak runoff from a 10-year, 24-hour precipitation event, or a larger event as specified by the Bureau. Permanent diversions shall be constructed with gently sloping banks that are stabilized by vegetation. Asphalt, concrete, or other similar linings shall be used only when approved by the Bureau to prevent seepage or to provide stability. Diversions shall be designed, constructed, and maintained in a manner which prevents additional contributions of suspended solids to streamflow and to runoff outside the permit area, to the extent possible using the best technology currently available. Appropriate sediment control measures for the diversions may include, but not be limited to, maintenance of appropriate gradients, channel lining, revegetation, roughness structures, and detention basins. A diversion may not be located so as to increase the potential for landslides. A diversion may not be constructed on existing landslides, unless approved by the Bureau. When no longer needed, each temporary diversion shall be removed and the affected land regraded, topsoiled, and revegetated. Diversions shall be designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas, to prevent material damage outside the permit area, and to assure the safety of the public. Diversion design shall incorporate the following: Channel lining shall be designed using standard engineering practices to pass safely the design velocities. Freeboard shall be not less than 1 foot. Protection shall be provided for transition of flows and for critical areas such as swales and curves. Where the area protected is a critical area as determined by the Bureau, the design freeboard may be increased. Energy dissipators shall be installed when necessary at discharge points, where diversions intersect with natural streams and exit velocity of the diversion ditch flow is greater than that of the receiving stream. Excess excavated material not necessary for diversion channel geometry or regarding of the channel shall be disposed of. Topsoil shall be handled in accordance with the Regulatory Program. Diversions may not be constructed or operated to divert water into underground mines without the approval of the Bureau. Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions: Are approved by the Bureau after making a finding that the diversion will not adversely affect the water quantity and quality and related environmental resources of the stream; Comply with other requirements of this regulation; and Comply with local, State, and federal statutes and regulations. When streamflow is allowed to be diverted, the stream channel diversion shall be designed, constructed, and removed, in accordance with the following: The longitudinal profile of the stream, the channel, and the floodplain shall be designed and constructed to remain stable and, to the extent possible using the best currently available technology, to prevent additional contributions of suspended solids to streamflow or to runoff outside the permit area. These contributions may not be in excess of requirements of State or federal law. Erosion control structures such as channel lining structures, retention basins, and artificial channel roughness structures shall be used in diversions only when approved by the Bureau as being necessary to control erosion. These structures shall be approved for permanent diversions only where they are stable and will require infrequent maintenance. The combination of channel, bank, and floodplain configurations shall be adequate to pass safely the peak runoff of a 10-year, 24-hour precipitation event for temporary diversions, a 100-year, 24-hour precipitation event for permanent diversions, or larger events specified by the Bureau. However, the capacity of the channel itself should be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion. The design and construction shall be certified by a qualified professional engineer as meeting the design criteria of the Regulatory Program. When no longer needed to achieve the purpose for which they were authorized, all temporary stream channel diversions shall be removed and the affected land regraded and revegetated. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement does not relieve the permittee from maintenance of a water treatment facility otherwise required under this chapter or the permit. When permanent diversions are constructed or stream channels restored, after temporary diversions, the operator shall: Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream; Establish or restore the stream to its natural meandering shape or an environmentally acceptable gradient, as determined by the Bureau; and Establish or restore the stream to a longitudinal profile and cross section, including aquatic habitats that approximate pre-mining stream channel characteristics. Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to: Prevent, to the extent possible, additional contributions of sediment to streamflow or to runoff outside the permit area; Meet the more stringent of applicable State or federal effluent limitations; and Minimize erosion to the extent possible. Sediment control measures include practices carried out within and adjacent to the disturbed area. Sediment control methods include but are not limited to: Disturbing the smallest practicable area at any one time during the mining operation through progressive backfilling, grading, and prompt revegetation; Diverting runoff away from disturbed areas; Diverting runoff using protected channels or pipes through disturbed areas so as not to cause additional erosion; Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment; Treating with chemicals. Exemptions. Exemptions to the requirements of this regulation may be granted if the: Disturbed drainage area within the total disturbed area is small; and Operator demonstrates that siltation structures and alternate sediment control measures are not necessary to meet the effluent limitations in this chapter and the applicable State and federal water quality standards for receiving waters. In this regulation, the following terms have the meanings indicated. Terms Defined. Disturbed Area. “Disturbed area” means an area from which vegetation, topsoil, or overburden is removed or land occupied by topsoil stockpiles, spoil piles, the open pit, access or haul roads, haulageways, storage areas, shop areas, processing and shipping areas, drainage or sediment control structures, coal processing wastes, underground development waste, or non-coal waste. “Disturbed area” does not include those areas where the: Only surface mining activities include diversion ditches, siltation structures, or roads that are designed, constructed, and maintained in accordance with COMAR 26.20.19; and Upstream area is not otherwise disturbed by the operator. “Other treatment facilities” means any chemical treatments, such as flocculation, or mechanical structures, such as clarifiers, that have a point source discharge and that are utilized to prevent additional contribution of suspended solids to streamflow or runoff outside the permit area. “Siltation structure” means a sedimentation pond, a series of sedimentation ponds, or other treatment facility. General Requirements for Siltation Structures. All siltation structures: Shall prevent additional contributions of suspended solids sediment to streamflow or runoff outside the permit area to the extent possible using the best technology currently available; Shall collect all surface drainage from the disturbed area before leaving the permit area, except as provided in §A of this regulation; Shall be constructed before beginning a surface mining activity in an area and, upon construction, be certified by a qualified professional engineer as being constructed in accordance with the approved design; Shall be designed, constructed, and maintained in accordance with Regulation .08 of this chapter if the structure impounds water; Shall be maintained until: Removal is authorized by the Department; The disturbed area has been stabilized and revegetated; The quality of the untreated drainage from the disturbed area meets applicable State and federal water quality standards for the receiving stream; and May not be removed if augmented seeding has occurred within the last 2 years. When a siltation structure is removed, the land on which the structure was located shall be regraded and revegetated in accordance with the approved reclamation plan. The design, construction, and maintenance of a siltation structure does not relieve the person from compliance with applicable effluent limitations. Sedimentation Ponds. Sedimentation ponds shall be used individually or in series and shall be: Designed, constructed, and maintained in accordance with Regulation .08 of this chapter; Located as near as possible to the disturbed area and out of perennial streams, unless approved by the Bureau; and Designed, constructed, and maintained to: Provide a minimum sediment storage volume of 67 cubic yards per acre of drainage area to the pond; Provide adequate detention time to allow the effluent from the ponds to meet State and federal effluent limitations; Contain or treat the 10-year, 24-hour precipitation event so there is no outflow through the emergency spillway unless a lesser design event is approved by the Bureau based on terrain, climate, other site conditions, and on a demonstration by the operator that the effluent limits of Regulation .02 of this chapter will be met; Provide a nonclogging dewatering device adequate to maintain the detention time; Minimize, to the extent possible, short circuiting; and Provide for the removal of sediment when the volume of sediment accumulates to 60 percent of the sediment storage volume. The dewatering device required by §G(3)(d) of this regulation may not be located at an elevation lower than the maximum elevation of the sediment storage volume, unless approval is obtained from the Bureau. Other Treatment Facilities. Other treatment facilities shall be designed: In accordance with the applicable requirements of this section; and To contain or treat the 10-year, 24-hour precipitation event unless a lesser design event is approved by the Bureau in accordance with §G(3)(c) of this regulation. Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap channels, and other devices, where necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering-design procedures. General Requirements. The requirements of this section apply to both temporary and permanent impoundments. Impoundments shall be designed and constructed to ensure: Compliance with USDA, Natural Resources Conservation Service, Maryland Conservation Practice, Standard Pond Code 378 (January 2000), as incorporated by reference in COMAR 26.17.02.01-1B(2); Compliance with requirements of COMAR 26.17.04.05 if the embankment is more than 15 feet in height as measured from the upstream toe of the embankment to the crest of the emergency spillway; Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 shall comply with “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60 and the requirements of this regulation; The minimum elevation at the top of the settled embankment shall be 1 foot above the water surface in the pond with the emergency spillway flowing at design depth; The height of the embankment is a minimum of 5 percent over the design height to allow for settlement, unless it has been demonstrated to the Bureau that the material used and the design will ensure against all settlement; The top width of the embankment is not less than the quotient of (H+35)/5, when H is the height, in feet, of the embankment, as measured from the upstream toe of the embankment; Perimeter slopes are stable, are not steeper than 2:1, and are protected against erosion where water enters the impoundment; The combined upstream and downstream side slopes of the settled embankment are not less than 5:1 with neither slope steeper than 2:1; The crest of the emergency spillway is a minimum of 1 foot above the crest of the principal spillway; A cut-off trench is installed before initiating the placement of fill material for the embankment with side slopes not steeper than 1:1; The embankment foundation area is cleared of all organic material and the entire area scarified; The embankment begins by placing and spreading fill material at the lowest point of the foundation, is brought up in horizontal layers not to exceed 8 inches as required to facilitate compaction, and is compacted as specified in the design approved by the Bureau; Fill material used in the construction of the embankment is free of sod, large roots and other vegetative matter, frozen soil, and coal processing waste; The embankment slope is protected against surface erosion and against damage caused by sudden drawdown; The embankment faces and surrounding areas are vegetated, except that the faces where water is impounded may be riprapped or otherwise stabilized in accordance with accepted design practices; and Newly constructed areas and those areas disturbed by the construction are vegetated immediately upon completion of the construction. Stability. Impoundments meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216(a) shall have a minimum static safety factor of 1.5 for a normal pool with steady state seepage saturation conditions and a seismic safety factor of at least 1.2. Impounds not included in §B(1) of this regulation, except for coal mine waste impounding structures, shall be constructed to achieve a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions. Unless otherwise determined by the Department based on site specific conditions, impoundments meeting the criteria of §§A(1) and B(2) of this regulation shall be considered to meet a minimum static safety factor of 1.3 for a normal pool with steady state seepage condition, if the: Embankment is not constructed of organic soil or clay of high plasticity; Embankment is constructed of fill material that contains sufficient moisture content to achieve proper compaction; and Existing slope of the foundation area is not steeper than the slope provided for the soil type to be used to construct the embankment in the chart at §B(4) of this regulation. Soil Classification Chart. An indication of sufficient moisture content in the fill material referenced in §B(3)(b) of this regulation is that the soil should form a ball which does not readily separate when kneaded by hand. The engineer may also specify other methods of testing moisture content. Freeboard. Impoundments shall have adequate freeboard to resist overtopping by waves and by sudden increases in storage volume. Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 shall comply with the freeboard hydrograph criteria in “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60. Foundation. Foundations and abutments for an impounding structure shall be stable during all phases of construction and operation and shall be designed based on adequate and accurate information on the foundation conditions. For an impoundment meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, shall be performed to determine the design requirements for foundation stability. For impoundments not meeting the size or other criteria of 30 CFR §77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, may be required to establish the stability of the foundation. Spillways. An impoundment shall include either a combination of principal and emergency spillways or a single spillway configured as specified in §D(2) of this regulation, designed and constructed to safely pass the applicable design precipitation event specified in §D(3) of this regulation. The Department may approve a single open-channel spillway that is: Of nonerodible construction and designed to carry sustained flows; or Rock or grass-lined and designed to carry short-term, infrequent flows at nonerosive velocities when sustained flows are not expected. The required design precipitation event for impoundments meeting the spillway requirements of this section are: For an impoundment meeting the size or other criteria of 30 CFR §77.216(a), a 100-year, 24-hour event, or larger event specified by the Department; For impoundments not meeting the size or other criteria of 30 CFR §77.216(a), a 25-year, 24-hour event, or larger event specified by the Department; or For impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60, in accordance with the emergency spillway hydrograph criteria in the “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60, or larger event specified by the Department. Impoundments meeting the size or other qualifying criteria of 30 CFR §77.216(a) shall comply with 30 CFR §77.216 and this regulation. The plan required to be submitted to the district manager of the Mine Safety and Health Administration (MSHA) under 30 CFR §77.216 shall also be submitted to the Department as part of the permit application. All temporary and permanent impoundments shall be designed by, or under the supervision of, a professional engineer, using current, prudent, engineering practices and design criteria, and the design certified by a professional engineer. Impoundments shall be routinely maintained during the mining operations in the following areas: Vegetative growth shall be cut where necessary to facilitate inspection and repair; Ditches and spillways shall be cleaned; Combustible material present on the surface, other than material like mulch or dry vegetation used for surface stability, shall be removed; and Other appropriate maintenance procedures shall be followed. Plans for an enlargement, reduction in size, reconstruction, or other modification of dams or impoundments shall be submitted to the Department and shall comply with the requirements of this regulation. Except when a modification is required to eliminate an emergency condition constituting a hazard to public health, safety, or the environment, the Department shall approve the plans before modification begins. Construction Inspections. A qualified professional engineer or other qualified specialist, under the direction of the professional engineer, shall inspect the impoundment. The professional engineer or specialist shall be experienced in the construction of impoundments. These inspections shall be made: At appropriate times during construction, including: Site preparation, Construction of the cut-off trench, Placement of the principal spillway pipe, including anti-seep collars and riser base, Placement and compaction of fill material around the principal spillway, Placement and compaction of fill in the impounding structure; and Upon completion of construction. After each inspection required by §A(1) of this regulation, the professional engineer shall submit to the Department a certified report that the impoundment is being constructed in accordance with the approved plan and Regulation .08 of this chapter. A copy of each report shall be retained at or near the mine site. Certification of Construction. Upon completion of construction, a certification statement and as-built drawing shall be submitted for each impoundment and impounding structure. The as-built drawing shall show the approved design and any modification or minor changes. The certification statement shall be signed and sealed by a professional engineer, and shall certify that: The impoundment and impounding structure has been constructed in accordance with the plans and specifications in the approved permit; Observations and measurements were made at appropriate times during and following construction by a professional engineer or a qualified person experienced in the design and construction of impoundments and impounding structures acting as a representative and reporting directly to the professional engineer; The completed impoundment and impounding structure meet the safety requirements of safe engineering practices, the regulatory program, and the design approved in the permit application; and Modifications made during construction meet the requirements of the regulatory program. The Department may require color photographs to be taken at the appropriate times specified in §A(1) of this regulation and submitted with the certification statement. Annual Inspection. An impoundment shall be inspected at least annually by a professional engineer or other qualified specialist under the direction of the professional engineer until removal of the impoundment or release of the performance bond. The professional engineer or specialist shall be experienced in the construction of impoundments. After each annual inspection, the professional engineer shall submit to the Department a certified report that the impoundment has been maintained in accordance with the approved plan and this chapter. The report shall include discussion of: Appearances of instability; Structural weakness or other hazardous conditions; Depth and elevation of any impounded waters; Existing storage capacity; Existing or required monitoring procedures and instrumentation; and Other aspects of the structure affecting stability. A copy of the report shall be retained at or near the mine site. Examinations. Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216 shall be examined in accordance with 30 CFR §77.216-3. Other impoundments not meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or subject to 30 CFR §77.216 shall be examined at least quarterly by a qualified person for appearance of structural weakness and other hazardous conditions. If an examination or inspection discloses that a potential hazard exists, the permittee shall immediately notify the Department of the hazard and of the emergency procedures formulated for public protection and remedial action. If adequate emergency procedures cannot be formulated or implemented, the Department shall be notified immediately. The Department shall then immediately notify the appropriate agencies that other emergency procedures are required to protect the public. Permanent Impoundments. A permanent impoundment of water may be created, if authorized by the Department in the approved permit, based upon a demonstration that the: Size and configuration of the impoundment will be adequate for its intended purposes; Quality of the impounded water will be suitable on a permanent basis for its intended use and after reclamation will meet applicable State and federal water quality standards; Discharges from the impoundment will meet applicable effluent limitations and will not degrade the quality of receiving water below applicable State and federal water quality standards; Water level will be sufficiently stable and capable of supporting the intended use; Final grading will provide for adequate safety and access for proposed water users; Impoundment will not result in diminution of the quality and quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses; Impoundment will be suitable for the approved postmining land use; and Vertical portion of any remaining highwall shall be located far enough below the low-water line along the full extent of the highwall to provide adequate safety and access for the proposed water users. Temporary Impoundments. The Department may authorize the construction of temporary impoundments as part of a surface coal mining operation. Before final bond release of the permit area, the permittee shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities to meet criteria specified in the detailed design plan of the permanent structures and impoundments. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.09 were previously codified as COMAR 08.13.09.24A—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .02 amended effective October 11, 1993 (20:20 Md. R. 1569) Chapter revised effective October 23, 1995 (22:21 Md. R. 1614) Chapter recodified from COMAR 08.20.21 to COMAR 26.20.21, June 1996 Regulation .01-1 adopted effective March 14, 2005 (32:5 Md. R. 582) Regulation .08 amended effective March 14, 2005 (32:5 Md. R. 582) Regulation .09D amended effective March 14, 2005 (32:5 Md. R. 582) The permittee shall comply with all applicable local, State, and federal laws and regulations related to the storage, handling, preparation, and use of explosives. Blasting operations that use more than the equivalent of 5 pounds of explosives shall be conducted according to a time schedule approved by the Bureau. Not later than 1 year after the effective date of this chapter, all blasting operations shall be conducted by or under the direction of at least one person who has been certified by the Bureau in accordance with Regulation .08 of this chapter. Before this time all blast operations shall be conducted by or under the supervision of a person who has obtained a certificate of completion of training and qualification from the Bureau, or from any state with an equivalent blasting training program, provided the person passes an examination administered by the Bureau. Certificates of blaster certification shall be carried by blasters or shall be on file at the permit area during blasting operations. A certified blaster and at least one other person shall be present at the firing of a blast. Persons responsible for blasting operations at a blasting site shall be familiar with the blasting plan and site specific performance standards. A person who is not certified and is assigned to a blasting crew to assist in the use of explosives shall receive direction and training from the certified blaster in charge of blasting operations. A resident or owner of a dwelling or structure within 1/2 mile of the permit area may request a pre-blasting survey. This request shall be made, in writing, directly to the permittee or the Bureau, who shall promptly notify the permittee. The permittee shall promptly have a pre-blast survey of the dwelling or structure conducted and a written report of the survey prepared. If requested by the resident or owner, the permittee shall have any updated survey of any additions, modifications or renovations performed. The survey shall be conducted, by a person approved by the Bureau, to determine the condition of the dwelling or structure and to document any pre-blasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems shall be limited to surface condition and other readily available data. Special attention shall be given to the pre-blasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water. A written report of the survey shall be prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure which should be incorporated into the blasting plan to prevent damage. Copies of the report shall be promptly provided to the person requesting the survey and to the Bureau. If the person requesting the survey disagrees with the results of the survey, he may notify, in writing, both the permittee and the Bureau of the specific areas of disagreement. A survey requested more than 10 days before the planned initiation of blasting shall be completed before the initiation of blasting. Each permittee shall publish a blasting schedule at least 30 days, but not more than 45 days, before beginning a blasting program in which blasts that use more than 5 pounds of explosive or blasting agent are detonated. The blasting schedule shall be published in a newspaper of general circulation in the locality of the blasting site. A copy of the certification of publication shall be retained with the blasting records in Regulation .07 of this chapter. At least 30 days before initiation of blasting, copies of the schedule shall be distributed to local governments, public utilities, and to each resident or owners of dwellings or other structures within 1/2 mile of the permit area described in the schedule. Copies sent to residents or owners of dwellings or other structures shall be accompanied by information advising the owner or resident how to request a pre-blasting survey. The copies shall be sent by mail or hand delivered. However, proof of notification shall be procured and retained with the blasting records in Regulation .07 of this chapter. The permittee shall republish and redistribute the schedule by mail at least every 12 months. Blasting Schedule Contents. A blasting schedule may not be so general as to cover the entire permit area or all working hours, but shall identify as accurately as possible the location of the blasting sites and the time periods when blasting will occur. The blasting schedule shall contain at a minimum: Name, address, and telephone number of permittee; Identification of the specific areas in which blasting will take place. Each specific blasting area described shall be reasonably compact and not larger than 300 acres. Dates and time periods when explosives are to be detonated, expressed in not more than 4-hour increments. These periods may not exceed an aggregate of 8 hours in any one day. Methods to be used to control access to the blasting area. Types of audible warnings and all-clear signals to be used before and after blasting. A description of unavoidable hazardous situations which have been approved by the Bureau for blasting at times other than those described in the schedule. A notice that a resident or owner of a dwelling within 1/2 mile of the permit area may request a pre-blast survey by contacting the permittee or the Bureau in writing. Before blasting in areas or at times not in a previous schedule, the permittee shall publish and distribute a revised blasting schedule, at least 10 days but not more than 30 days before blasting. Information on requesting a pre-blast survey need not be repeated in a change notice. If there is a substantial pattern of non-adherence to the published blasting schedule as evidenced by the absence of blasting during a scheduled period, the Bureau may require that the permittee submit to the Bureau and republish a revised blasting schedule. All blasting signs shall be constructed, installed, and maintained in accordance with COMAR 26.20.18 on signs and markers. All blasting shall be conducted between sunrise and sunset. Blasting shall be conducted at times approved by the Bureau and announced in the published blasting schedule. The Bureau may limit the area covered, specify more restrictive time periods, and limit the sequence of blasting as listed in the schedule, if the limitations are necessary or reasonable in order to protect the public health and safety or welfare. Unscheduled blasts may be conducted only when public or permittee health and safety so require and for emergency blasting actions. When an unscheduled blast is conducted, the permittee shall: Using audible signals, notify residents within 1/2 mile of the blasting site; Orally notify residents within 1,000 feet of the blasting site and the Bureau; File a complete written report of the unscheduled blasting with the Bureau not later than 3 days after the unscheduled blast; the report shall include a detailed description of the reasons for the unscheduled blast, including reasons why the blast could not have been delayed until the next day, the actual time the blast was conducted, the warning notices that were given, and a copy of the blasting record. Warning and all-clear signals of different character that are audible within a range of 1/2 mile from the point of the blast shall be given. Each person within the permit area and each person who resides or regularly works within 1/2 mile of the permit area shall be notified of the meaning of the signals in the blasting schedule. Access to an area subject to flyrock from blasting shall be regulated to protect the public and livestock. Access to the area shall be controlled to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the permittee has reasonably determined that: No unusual circumstances, such as imminent slides or undetonated charges exist; and Access to and travel in or through the area can be safely resumed. Blasting shall be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on underground mines and change in the course, channel, or availability of ground or surface waters outside the permit area. Except where lesser distances are approved by the Bureau based upon a pre-blasting survey, seismographic investigation, or other appropriate investigation, blasting may not be conducted within: Three hundred feet of any building used as a dwelling, school, church, hospital, or nursing facility; and Five hundred feet of facilities including, but not limited to, disposal wells, petroleum or gas-storage facilities, municipal water-storage facilities, fluid-transmission pipelines, gas or oil-collection lines, or water and sewage lines. Airblast. Limits. An airblast may not exceed the maximum limits listed below at the location of any dwelling, public building, school, church, or community or institutional building outside the permit area except as provided in §K of this regulation: If necessary to prevent damage, the Bureau may specify lower maximum allowable airblast levels than those of §H(1)(a) of this regulation for use in the vicinity of a specific blasting operation. Monitoring. The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The Bureau may require airblast measurement of any or all blasts and may specify the location at which the measurements are taken. The measuring systems shall have an upper end flat-frequency response of at least 200 Hz. Flyrock, including blasted material traveling along the ground, may not be cast more than half the distance from the blasting vicinity to the nearest dwelling or other occupied structure beyond the area of regulated access under §E of this regulation, or beyond the permit boundary. Ground Vibration. In all blasting operations, except as otherwise authorized in §K of this regulation, the maximum ground vibration may not exceed the values approved in the blasting plan required under COMAR 26.20.02.13F. The maximum ground vibration for protected structures listed in §J(2)(a) of this regulation shall be established in accordance with either the maximum peak-particle-velocity limits of §J(2), the scaled-distance equation of §J(3), or by the Bureau of Mines under §J(4) of this regulation. All structures in the vicinity of the blasting area, not listed in §J(2)(a) of this regulation, such as water towers, pipelines, and other utilities, tunnels, dams, impoundments and underground mines shall be protected from damage by establishment of a maximum allowable limit on the ground vibration, submitted by the operator of the blasting plan, and approved by the Bureau of Mines. Maximum Peak Particle Velocity. The maximum ground vibration may not exceed the following limits at the location of any dwelling, public building, school, church, or community or institutional building outside the permit: A seismographic record shall be provided for each blast. Scaled-Distance Equation. An operator may use the scaled-distance equation, W = (D/Ds)B., to determine the allowable charge weight of explosives to be detonated in any 8-millisecond period, without seismic monitoring, where W = the maximum weight of explosives, in pounds, D = the distance, in feet, from the blasting site to the nearest protected structure, and Ds = the scaled-distance factor, which may initially be approved by the Bureau using the values for scaled-distance factor listed in the following chart: For distances between 100 and 5,000 feet, solution of the equation results in the following maximum weight: The development of a modified scale-distance factor may be authorized by the Bureau on receipt of a written request by the operator, supported by seismographic records of blasting at the minesite. The modified scale-distance factor shall be determined such that the particle velocity of the predicted ground vibration does not exceed the prescribed maximum allowable peak particle velocity of §J(2)(a) of this regulation, at a 95-percent confidence level. Blasting-Level Chart. An operator may use the ground vibration limits in Figure 1 to determine the maximum allowable ground vibration. If the Figure 1 limits are used, a seismographic record including both particle velocity and vibration frequency levels shall be provided for each blast. The method for analysis of the predominant frequency contained in the blasting records shall be approved by the Bureau before application of this alternative blasting criterion. The maximum allowable ground vibration shall be reduced by the Bureau to less than the limits otherwise provided by this regulation, if determined necessary to provide damage protection. The Bureau may require an operator to conduct seismic monitoring of any or all blasts and may specify the location at which the measurements are taken and the degree of detail necessary in the measurements. Exemptions to Certain Standards. The maximum airblast and ground-vibration standards of §§H and J of this regulation may not apply at the following locations: At structures owned by the permittee and not leased to another person; At structures owned by the permittee and leased to another person, if a written waiver by the lessee is submitted to the regulatory authority before blasting. Blasting operations within 500 feet of active underground mines require approval of the Bureau and federal regulatory authorities concerned with the health and safety of underground miners. The operator shall retain a record of all blasts for at least 3 years. Upon request, copies of these records shall be made available to the Bureau and to the public for inspection. The records shall contain the following data: Name of the operator conducting the blast; Location, date, and time of blast; Name, signature, and certification number of blaster conducting the blast; Identification, direction, and distance, in feet, from the nearest blast hole to the nearest dwelling, public building, school, church, community or institutional building outside the permit area, except those described in Regulation .06K of this chapter; Weather conditions, including those which may cause possible adverse blasting effects; Type of material blasted; Sketches of the blast pattern including number of holes, burden, spacing, decks, and delay pattern; Diameter and depth of holes; Types of explosives used; Total weight of explosives used per hole; The maximum weight of explosives detonated in any 8-millisecond period; Initiation system; Type and length of stemming; Mats or other protections used; Seismographic and airblast records, if required, which shall include: Type of instrument, sensitivity, and calibration signal or certification of annual calibration, Exact location of instrument and the date, time, and distance from the blast, Name of the person and firm taking the reading, Name of the person and firm analyzing the seismographic record, and The vibration or airblast level recorded, or both; Reasons and conditions for each unscheduled blast. As used in this chapter, a blaster is a person who is directly responsible for the use of explosives in surface coal mining operations and is certified under this regulation. Qualifications. Persons applying to become certified blasters shall: Be at least 21 years old; Have received at least 1 year of qualifying experience under the direction and supervision of a certified blaster in the handling and use of explosives; and Receive training including, but not limited to, the technical aspects of blasting operations and State and federal laws concerning the storage, transportation, and use of explosives. Training. Blaster training courses shall include training and discussion in the practical applications of: Explosives, including: Selection of the type of explosive to be used; Determination of the properties of explosives which will produce desired results at an acceptable level of risk, and Handling, transportation, and storage; Blast designs, including: Geologic and topographic considerations, Design of a blast hole, with critical dimensions, Pattern design, field layout, and timing of blast holes, and Field applications; Loading blast holes, including priming and boostering; Initiation systems and blasting machines; Blasting vibrations, airblast, and flyrock, including: Monitoring techniques, and Methods to control adverse effects; Secondary blasting applications; Current federal and State regulations applicable to the use of explosives; Blast records; Schedules; Pre-blasting surveys, including: Availability, Coverage, and Use of in-blast design; Blastplan requirements; Certification and training; Signs, warning signals, and site control; Unpredictable hazards, including: Lightning, Stray currents, Radio waves, and Misfires. The Bureau shall ensure that courses that cover the topics identified in §C of this regulation are available to train competent persons responsible for the use of explosives in surface coal mining operations. Examination. The Bureau of Mines shall examine candidates for blaster certification who have successfully completed a training course approved by the Bureau and covering the topics set forth in §C of this regulation or have received training and certification as a blaster in any state with a federally approved blaster certification program. The examination, at a minimum, shall include the topics set forth in §C of this regulation and shall review and verify the: Competence of persons directly responsible for use of explosives in surface coal mining operations through a written examination in technical aspects of blasting and State and federal laws governing the storage, use, and transportation of explosives. Practical field experience of the candidates as necessary to qualify a person to accept the responsibility for blasting operations in surface coal mining operations. The experience shall demonstrate that the candidate possesses practical knowledge of blasting techniques, understands the hazards involved in the use of explosives, and otherwise has exhibited a pattern of conduct consistent with the acceptance of responsibility for blasting operations. Certification. Upon determination that a candidate for blaster certification has successfully passed the examination and has been found to be competent and have the necessary experience, the Bureau shall issue to the individual a certificate indicating that the individual is a certified blaster for a period of 3 years. Suspension and Revocation. The Bureau, when practicable, following written notice and opportunity for a hearing, may, and upon a finding of willful conduct, shall suspend or revoke the certification of a blaster during the term of certification or take other necessary action for any of the following reasons: Noncompliance with any order of the Bureau; Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs; Violation of any provision of the State or federal explosives laws or regulations; Providing false information or a misrepresentation to obtain certification; Refusal to exhibit his or her certificate to any authorized representative of the Bureau or the Office of Surface Mining, U.S. Department of the Interior, upon request. If advance notice and opportunity for hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action. Upon notice of a revocation, the blaster shall immediately surrender to the regulatory authority the revoked certificate. Recertification. Recertification of all blasters is required every 3 years. Each applicant for recertification shall be currently certified and shall submit validated proof that he has had at least 1 year of blasting experience in the previous 3 years. Reexamination. A certified blaster may not be recertified two consecutive times unless upon the second application, the applicant also successfully passes the examination as required in §E of this regulation. Protection of Certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any occurrence of loss, theft, or unauthorized duplication shall be reported immediately to the Bureau. Conditions. A blaster shall immediately exhibit his or her certificate to any authorized representative of the Bureau or the Office of Surface Mining, U.S. Department of Interior, upon request. Blaster certifications may not be assigned or transferred. A blaster may not delegate the blaster's responsibility to an individual who is not a certified blaster. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.08 were previously codified as COMAR 08.13.09.25A—H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.22 to COMAR 26.20.22, June 1996 An exposed surface area shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion. Fugitive dust control measures may include, but not be limited to: Periodic watering of unpaved roads; Chemical stabilization of unpaved roads with proper application of nontoxic soil cement or dust palliatives; Paving of roads; Prompt removal of coal, rock, soil, and other dust-forming debris from roads and frequent scraping and compaction of unpaved roads to stabilize the road surface; Restricting the speed of vehicles to reduce fugitive dust caused by travel; Revegetating, mulching, or otherwise stabilizing the surface of all areas adjoining roads that are sources of fugitive dust; Restricting the travel of unauthorized vehicles on other than established roads; Minimizing the area of disturbed land; Prompt revegetation of regraded lands; Restriction of dumping procedures, wetting of disturbed materials during handling, and compaction of disturbed areas; Control of dust from drilling, using water sprays, hoods, dust collectors, or other controls; Reducing the period of time between initially disturbing the soil and revegetating or other surface stabilization; Restricting fugitive dust at spoil and coal transfer and loading points with water sprays; and Enclosing, covering, watering, or otherwise treating loaded haul trucks to reduce loss of material to winds and slippage. Where the Bureau determines that application of the above control measures is inadequate, the Bureau may require additional measures and practices as necessary. Any person conducting surface mining activities shall, to the extent possible, and using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and shall achieve enhancement of the resources when practicable. A surface mining activity may not be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the U.S. Department of the Interior, or which is likely to result in destruction or adverse modification of designated critical habitats of the species in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute. Surface mining may not be conducted in a manner which would result in unlawful taking of a bald or golden eagle, its nest, or its eggs. A person conducting surface mining activities who becomes aware of a State or federally listed endangered or threatened species within the permit area, or designated critical habitats of the species as identified by the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute, or a golden or bald eagle nest promptly shall notify the Bureau. On notification or discovery of any threatened or endangered species, critical habitat of the species, or golden or bald eagle nest, the Bureau shall consult with appropriate State and federal fish and wildlife agencies and determine whether, and under what conditions, the operator may proceed. This regulation does not authorize the taking of an endangered or threatened species or a bald or golden eagle, its nest, or its eggs in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or the Bald Eagle Protection Act as amended (16 U.S.C. §668 et seq.). Each person who conducts surface mining activities shall, to the extent possible and using the best technology currently available: Ensure that electric powerlines and other transmission facilities used for, or incidental to, surface mining activities on the permit area are designed and constructed to minimize electrocution hazards to raptors, except when the Bureau determines these requirements are unnecessary; Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife species or other species protected by State or federal law; Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except when the Bureau determines these requirements are unnecessary; and Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials. If fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall: Select plant species to be used on reclaimed areas, based on their nutritional and cover value for fish and wildlife and their ability to support and enhance fish and wildlife habitat after release of bonds; Distribute plant groupings to maximize benefit to fish and wildlife; plants should be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits for fish and wildlife. If cropland is to be the postmining land use, and when appropriate for wildlife and crop-management practices, and the landowner approves, each person who conducts surface mining activities shall, to the extent possible, intersperse the fields with trees, hedges, or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals. If the primary land use is to be residential, public service, or industrial land use, and when the landowner approves, each person who conducts surface mining activity shall, to the extent possible, intersperse reclaimed lands with greenbelts using species of grass, shrubs, and trees useful as food and cover for birds and small animals, unless greenbelts are inconsistent with the approved postmining or adjacent land use. The operator conducting surface mining activities shall avoid disturbance to, enhance when practicable, restore, or replace: Wetlands; Riparian vegetation along rivers and streams and bordering ponds and lakes; and Habitats of unusually high value for fish and wildlife. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01 and .02 were previously codified as COMAR 08.13.09.27 and .26, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Regulation .01 amended effective March 14, 1994 (21:5 Md. R. 403) Chapter recodified from COMAR 08.20.23 to COMAR 26.20.23, June 1996 Any auger mining associated with surface mining activities shall be conducted to maximize recoverability of mineral reserves remaining after the mining activities are completed. The permittee shall leave areas of undisturbed coal as approved by the Bureau, to provide access for removal of those reserves by future underground mining activities, unless the Bureau determines that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves. The Bureau shall make the determination upon presentation of appropriate technical evidence by the permittee. An auger hole may not extend closer than 500 feet in horizontal distance to any abandoned or active underground mine workings, except as approved in accordance with Regulation .07 of this chapter. Each auger hole shall be plugged by backfilling and compacting noncombustible and impervious material into the hole, as follows: Each auger hole discharging water containing toxic-forming or acid-forming material shall be plugged within 72 hours after completion, or the discharge shall be treated to meet applicable effluent limitations and water quality standards until the hole is properly sealed; and Each auger hole not discharging water shall be sealed to close the opening within 30 days following completion. An auger hole need not be plugged, if the Bureau finds that: Impoundment of the water which would result from plugging the hole may create a hazard to the environmental or public health or safety; and Drainage from the auger hole will not pose a threat of pollution to surface water. The Bureau shall prohibit auger mining, if it determines that: Adverse water quality impacts cannot be prevented or corrected; Fill stability cannot be achieved; The prohibition is necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources; or Subsidence resulting from auger mining may disturb or damage powerlines, pipelines, buildings, or other facilities. The permittee shall adopt: Measures consistent with known technology which prevent subsidence from causing material damage to the extent technologically and economically feasible, and maintain the value and reasonably foreseeable use of surface lands; or Mining technology which provides for planned subsidence in a predictable and controlled manner. The permittee shall: Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence; and Correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of the structures or facilities in the full amount of the diminution in value resulting from the subsidence. Repair of damage under §G(2) of this regulation includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation under §G(2) of this regulation may be accomplished by the purchase before mining of a noncancellable premium-prepaid insurance policy. Surface coal mining and reclamation operations conducted on prime farmland shall meet the following requirements: Soil materials to be used in the reconstruction of prime farmland shall be removed before drilling, blasting, or mining, in a manner that prevents mixing or contamination with undesirable material. The minimum depth of soil and soil material to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacement requirements. If removal of soil materials results in erosion that may cause air and water pollution, the Bureau shall specify methods to control erosion of exposed overburden. Operations shall be conducted so as to separately remove the: Topsoil or other suitable materials when the other soil materials which will create a final soil having an equal or greater productive capacity than that which existed before mining; “B” horizon of the soil, a combination of “B” horizon and underlying “C” horizon, or other suitable soil material that will create a reconstructed soil of equal or greater productive capacity than that which existed before mining; Underlying “C” horizons, other strata, or a combination of horizons or other strata, to be used instead of the “B” horizon; when replaced, these combinations shall be equal to, or more favorable for plant growth than, the “B” horizon. If not utilized immediately, the topsoil or other suitable soil materials, the “B” horizon or other suitable materials, and the “C” horizon or other suitable soil materials, shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area so they are not disturbed or exposed to excessive water or wind erosion before the stockpiles horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements for topsoil storage. Soil Replacement. The minimum depth of soil and soil material to be reconstructed for prime farmland shall be 48 inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The Bureau shall specify a depth greater than 48 inches wherever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties, or water-supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area, and have little or no beneficial effect on soil productive capacity. Soil material may be replaced only on land which has been first returned to final grade, and scarified, unless site-specific evidence is provided and approved by the Bureau showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield. Replacement of the soil horizons or other suitable soil material shall be in a manner that avoids excessive compaction. The “B” horizon or other suitable material shall be replaced to the thickness needed to meet the requirements of §C(1) of this regulation. The “A” horizon or other suitable soil materials shall be replaced as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil, and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted. Nutrients and soil amendments shall be applied as needed to quickly establish vegetation growth. Revegetation. Following soil replacement, a vegetative cover shall be established which is capable of stabilizing the soil surface with respect to erosion. All vegetation shall be carried out in a manner that encourages prompt vegetation cover and the recovery of productive capacity. Prime farmland soil productivity shall be restored in accordance with the following provisions: Measurement of soil productivity shall be initiated within 10 years after completion of soil replacement. Soil productivity shall be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the reference crop determined under §D(2)(f) of this regulation. A statistically valid sampling technique at a 90 percent or greater statistical confidence level shall be used as approved by the Regulatory Authority in consultation with the U.S. Soil Conservation Service. The measurement period for determining average annual crop production (yield) shall be a minimum of 3 crop years before release of the operator's performance bond. The level of management applied during the measurement period shall be the same as the level of management used on nonmined prime farmland in the surrounding area. Restoration of soil productivity shall be considered achieved when the average yield during the measurement period equals or exceeds the average yield of the reference crop established for the same period for non-mined soils of the same or similar texture or slope phase of the soil series in the surrounding area under equivalent management practices. The reference crop on which restoration of soil productivity is proven shall be selected from the crops most commonly produced on the surrounding prime farmland. When row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth shall be chosen as one of the reference crops. Reference crop yields for a given group season are to be determined from the: Current yield records of representative local farms in the surrounding area, with concurrence by the U.S. Soil Conservation Service; or Average county yields recognized by the U.S. Department of Agriculture, which have been adjusted by the U.S. Soil Conservation Service for local yield variation within the county that is associated with differences between non-mined prime farmland soil and all other soils that produce the reference crop. Under the procedures in §E(1) or (2) of this regulation, the average reference crop yield may be adjusted with the concurrence of the U.S. Soil Conservation Service for: Disease, pest, and weather-induced seasonal variations; or Difference in specific management practices when the overall management practices of the crops being compared are equivalent. The Bureau may grant a variance from the requirement for restoring affected areas to their approximate original contour if all of the following conditions are satisfied: The permit application specifically requests a variance, and contains information in accordance with COMAR 26.20.03.03, and the following criteria, which enables the Bureau to make all necessary findings. The activities involve the mining of an entire coal seam running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or gently rolling contour with no highwalls remaining. An industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed and approved for the affected land. The alternative land-use requirements in COMAR 26.20.03.03 are met. All applicable requirements of the Regulatory Program, other than the requirement to restore affected areas to their approximate original contour, are met. An outcrop barrier of sufficient width, consisting of the toe of the lowest coal seam, and its associated overburden, are retained to prevent slides and erosion. The Bureau may permit an exemption to the retention of the coal barrier requirement if the following conditions are satisfied: The proposed mine site was mined before May 3, 1978, and the toe of the lowest seam has been removed; or A coal barrier adjacent to a head-of-hollow fill may be removed after the elevation of a head-of-hollow fill attains the elevation of the coal barrier if the head-of-hollow fill provides the stability otherwise ensured by the retention of a coal barrier. The final graded slopes on the mined area are less than 5:1 so as to create a level plateau or gently rolling configuration, and the outslope of the plateau does not exceed 2:1 except where engineering data substantiates and the bureau finds, in writing, and includes in the permit, that a minimum static safety factor of 1.5 will be attained. The resulting level or gently rolling contour is graded to drain inward from the outslope, except at specified points where it drains over the outslope in stable and protected channels. The drainage may not be through or over a valley or head-of-hollow fill. Natural watercourses below the lowest coal seam mined are not damaged. All waste and acid-forming or toxic-forming materials, including the strata immediately below the coal seam, are covered with non-toxic spoil to prevent pollution and achieve the approved postmining land use. Spoil is placed on the mountaintop bench as necessary to achieve the postmining land use approved. All excess spoil material not retained on the mountaintop shall be placed in accordance with the Regulatory Program. The following special requirements apply whenever the affected area includes steep slopes: The permittee shall prevent the following materials from being placed or allowed to remain on the downslope: Spoil; Waste materials, including waste mineral matter; Debris, including that from clearing and grubbing of haul road construction; and Abandoned or disabled equipment. Nothing in §A of this regulation shall prohibit the placement of material in road embankments located on the downslope, so long as the material used and embankment design comply with the requirements of the Regulatory Program, and the material is moved and placed in a controlled manner. The permittee shall demonstrate to the Bureau, using standard geotechnical analysis, that the minimum static factor of safety for the stability of all portions of the reclaimed land is at least 1.5. Land above the highwall may not be disturbed, unless the Bureau finds that the disturbance assists compliance with the requirements of this regulation. Material in excess of that required by the grading and backfilling provisions shall be disposed of in accordance with the requirements of the Regulatory Program. Woody materials may not be buried in the backfilled area unless the Bureau determines that the proposed method for placing woody material beneath the highwall will not deteriorate the stable condition of the backfilled area. Woody materials may be chipped and distributed over the surface of the backfill as mulch, if special provision is made for their use and approved by the Bureau. Unlined or unprotected drainage channels may not be constructed on backfills unless approved by the Bureau as stable and not subject to erosion. In multiple-seam, steep slope affected areas, spoil not required to reclaim and restore the permit area may be placed on a preexisting bench, if approved by the Bureau and if the following requirements are met: All excess spoil shall be hauled, placed, and retained on the solid bench; The spoil shall be graded to a moderate slope, so as to eliminate the existing highwall to the extent possible with the available material; The fill shall comply with the Regulatory Program. Each person who operates a coal preparation plant and associated facilities, as defined in COMAR 26.20.01, shall obtain a permit to conduct those operations and otherwise comply with, at a minimum, the Regulatory Program requirements related to: Signs and markers for the coal processing plant, coal processing waste disposal area, and water treatment facilities; Roads, transport, and associated structures; Stream or channel realignment; Sediment control structures, and all discharges from disturbed areas; Permanent impoundments associated with coal preparation plants, and dams constructed of or impounding coal processing waste; Use of water wells, and provisions for protection of water rights; Disposal of coal processing waste, solid waste, and any excavated materials; Discharge structures for diversions and sediment control structures; Air pollution control measures associated with fugitive dust emissions; Protection of fish, wildlife, and related environmental values; Slide areas and other surface areas in general; Adverse effects upon or resulting from nearby underground coal mining activities; Reclamation, including proper topsoil handling procedures, revegetation, and abandonment; Conveyors, buildings, storage bins or stockpiles, water treatment facilities, water storage facilities, and any other related structure or system; Prime farmland. In situ processing activities shall be planned and conducted to minimize disturbance to the prevailing hydrologic balance by: Avoiding discharge of fluids into holes or wells, other than as approved by the Bureau; Injecting process recovery fluids only into geologic zones or intervals approved as production zones by the Bureau; Avoiding annular injection between the wall of the drill hole and the casing; and Preventing discharge of process fluid into surface waters. Each person who conducts in situ processing activities shall submit for approval as part of the application for a permit, a plan that ensures that all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard, and caused by the mining and recovery process, are promptly treated, confined, or disposed of in a manner that prevents contamination of ground and surface waters, damage to fish, wildlife, and related environmental values, and threats to the public health and safety. Each person who conducts in situ processing activities shall prevent flow of the process recovery fluid: Horizontally beyond the affected area identified in the permit; and Vertically into overlying or underlying aquifers. Each person who conducts in situ processing activities shall restore the quality of affected ground water in the mine plan and adjacent area, including ground water above and below the production zone, to the approximate pre-mining levels or better, to ensure that the potential for use of the ground water is not diminished. Monitoring. Each person who conducts in situ processing activities shall monitor the quality and quantity of surface and ground water and the subsurface flow and storage characteristics, in a manner approved by the Bureau, to measure changes in the quantity and quality of water in surface and ground water systems in the mine plan and in adjacent areas. Air and water quality monitoring shall be conducted in accordance with monitoring programs approved by the Bureau as necessary according to appropriate federal and State air and water quality standards. Surface coal mining activities may not be conducted closer than 500 feet to any point of either an active or abandoned underground mine, except to the extent that: For active underground mines, including abandoned sections of active mines: The nature, timing, and sequence of the operations are jointly approved by the Mine Safety and Health Administration and the Bureau; and The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public; For abandoned underground mines: The nature, timing, and sequence of the operations are approved by the Bureau, and The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public. Surface mining activities shall be designed to protect disturbed areas, including spoil disposal sites, so as not to endanger any present or future operations of either surface or underground mining activities. Deep mine areas containing significant amounts of impounded water shall be bypassed in open-pit mining unless plans for water handling during and after mining are submitted with the application and demonstrate that there will be no adverse effects. Purpose and Scope. This regulation establishes certain minimum standards pertaining to the use of coal combustion byproducts in surface coal mining and reclamation operations and in abandoned coal mines. Coal combustion byproducts may not be used in surface coal mining and reclamation operations or in abandoned coal mines, except in accordance with this regulation. Compliance with this regulation does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances, including but not limited to the general requirements of COMAR 26.20. This regulation is in addition to the general requirements of COMAR 26.20. Definitions. In this regulation, the following terms have the meanings indicated. Terms Defined. “Alkaline coal combustion byproducts (ACCBs)” means coal combustion byproducts which, either naturally or by the addition of lime or other alkaline materials, exhibit a net neutralization potential of 5 tons per 1,000 tons CaCO3 equivalent or greater. Coal Combustion Byproducts. “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal. “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers, including flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods. “Department” means the Maryland Department of the Environment. “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland. Conditions for Utilization. A person may utilize coal combustion byproducts at a permitted surface coal mining and reclamation operation or as part of an abandoned coal mine project only if: The coal combustion byproducts are: Not regulated under COMAR 26.13; and Alkaline coal combustion byproducts; The person proposing to utilize the ACCBs provides to the Bureau a certified laboratory analysis demonstrating that the coal combustion byproducts proposed to be utilized constitute ACCBs; and The utilization is approved by the Bureau in writing. Coal Combustion Byproducts Utilization Request. A person who proposes to utilize coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine project shall complete and submit to the Bureau a Coal Combustion Byproducts Utilization Request in the form provided by the Bureau for review and approval by the Bureau. In a surface coal mining and reclamation operation, the utilization request shall be submitted as part of the permit application and reclamation plan, or modification of an existing permit. The Bureau's review and approval of the utilization request shall be in accordance with the permit and reclamation plan review process. In an abandoned coal mine project, the utilization request shall be submitted to the Bureau before the proposed use and the Bureau shall approve, disapprove, or provide comments on the utilization request within 90 days of submission. The utilization request shall be signed and certified by a duly authorized official of the person proposing to utilize the coal combustion byproducts and shall include at a minimum the following information: Name, address, and contact information of the applicant; Surface coal mine operation permit number, if applicable; An estimate of coal tonnage produced, if applicable; Whether the request is a result of a haul-back agreement, and, if so, whether the agreement is proposed or finalized; A letter approving the utilization of the coal combustion byproducts from the landowner or landowners of the area where utilization is proposed; Name, address, and contact information of the source of the coal combustion byproducts; Type of facility that generated the coal combustion byproducts; Type of fuel burned to generate the coal combustion byproducts; Type of coal combustion byproduct (that is, bottom ash/slag, fly ash, fluidized bed combustion ash, desulfurization sludge, calcium spray dryer sludge, other); If combined coal combustion byproducts, a description of the types and relative percentages; A copy of a solids analysis of the coal combustion byproducts, performed within the last 60 days, which at a minimum provides analysis for the following: Aluminum; Arsenic; Barium; Boron; Cadmium; Chromium; Copper; Lead; Lithium; Manganese; Mercury; Molybdenum; Selenium; Silver; and Zinc; A copy of a Toxicity Characteristics Leaching Procedure (TCLP) leachate analysis, or other test approved by the Department, of the coal combustion byproducts, performed within the last 60 days, which at a minimum includes analysis for the following: Aluminum; Arsenic; Barium; Cadmium; Chromium; Copper; Lead; Manganese; Mercury; Selenium; Silver; and Zinc; A copy of an acid-base accounting analyses for the coal combustion byproducts and any materials to be used to increase the net neutralization potential of the coal combustion byproducts, providing the following: Neutralization potential in tons of CaCO3 equivalents per thousand tons of material; Maximum potential acidity in terms of tons per thousand tons of material; and Net neutralization potential in tons of CaCO3 equivalents per thousand tons of material; A copy of water quality analyses for the proposed coal combustion byproducts utilization area, performed within the last 60 days, which provides analysis for the following parameters: pH; Specific conductance; Total dissolved solids; Total suspended solids; Acidity; Alkalinity; Aluminum; Arsenic; Barium; Boron; Cadmium; Chromium; Copper; Iron; Lead; Lithium; Manganese; Mercury; Molybdenum; Selenium; Silver; Sulfate; and Zinc; The quantity of coal combustion byproducts to be utilized per month; A narrative description with map or maps, drawings, and cross-sections of the proposed handling plan, including at a minimum details on: Where the coal combustion byproducts will be placed; How the coal combustion byproducts will be placed; How instability in fills or backfills will be prevented; How the approximate original contour of the mine backfill configuration will be achieved; and How coal combustion byproducts that cannot be immediately utilized will be stored; A narrative description with drawings and cross-sections, if appropriate, explaining how dust from hauling, unloading, storage, and coal combustion byproducts placement operations will be controlled; A narrative description with drawings and cross-sections, if appropriate, explaining how contamination of surface and ground water will be prevented, and how surface and ground water will be monitored; A narrative description of the potential hazards to workers involved in the handling of the coal combustion byproducts, and the plan to protect them if warranted; A narrative description of the processes and procedures used or to be used to augment the net neutralization potential of the coal combustion byproducts, including a description of the type and quantity of any materials to be used to increase the net neutralization potential of the coal combustion byproducts; and Other information as the Bureau or Department requires. Permitted Utilization of Alkaline Coal Combustion Byproducts. Subject to the other provisions of this regulation, ACCBs may be used for the purpose of alkaline addition to neutralize potentially acid materials in and around coal mines or in surface coal mine reclamation as follows: A layer on the pit floor to reduce the acid producing potential of the coal pavement; Mixed with overburden material in the backfilling process to add alkalinity; Part of a Bureau designed or approved reclamation project; or Otherwise as approved by the Bureau. Testing and Monitoring. Before using ACCBs in a surface coal mining and reclamation operation or in an abandoned coal mine, and annually thereafter or on such other basis as the Bureau may require, a person using or proposing to use ACCBs shall: Submit to the Bureau a chemical analysis of the ACCB that includes a Toxicity Characteristic Leaching Procedure (TCLP), an acid-base accounting, and any other analysis required by the Bureau; and Submit to the Bureau a report of the number of tons of ACCBs placed or to be placed at a site each month. A utilization of coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine that is not in compliance with the provisions of this regulation as determined by the Department may be a disposal of a solid waste as determined by the Department and subject to all applicable laws and regulations governing the disposal of a solid waste, including applicable permit requirements of the Department. The Bureau or the Department may require additional controls or impose other conditions on the utilization of coal combustion byproducts under this regulation as it considers necessary for the protection of human health and the environment. Environment Article, §§1-404, 15-503, and 15-702, Annotated Code of Maryland Effective date: Regulations .01—.07 were previously codified as COMAR 08.13.09.28A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.24 to COMAR 26.20.24, June 1996 Regulation .08 adopted effective December 1, 2008 (35:24 Md. R. 2080) All trees and shrubs shall be cut and removed from the affected area. Shrubs or brush removed from the disturbed area shall be buried at the bottom of the pit, separate from any acid or toxic materials, or in other suitable locations approved by the Bureau. Topsoil Removal. Topsoil to be saved shall be removed after vegetation that could interfere with the use of the topsoil is cleared from the areas to be disturbed, but before any drilling, blasting, mining, or other surface disturbance. All topsoil shall be removed in a separate layer from the areas to be disturbed, unless use of substitute or supplemental materials is approved by the Bureau. If the topsoil is less than 6 inches, a separate layer shall be removed that includes all of the topsoil and the unconsolidated materials immediately below the topsoil to a minimum depth of 6 inches. If the Bureau determines that it is necessary or desirable, to ensure soil productivity consistent with the post-mining land use, then the Bureau may require removal of an additional layer (including portions of the “B” or “C” horizons) to be segregated and redistributed as subsoil. The maximum amount of topsoil that shall be saved shall be an amount sufficient to cover the areas to be revegetated to a depth of 4 feet. Selected overburden materials may be substituted for, or used as a supplement to, topsoil if the Bureau determines that the resulting soil medium is equal to or more suitable for sustaining revegetation than is the available topsoil and if the substitute material is the best available to support revegetation. This determination shall be based on analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, and areal extent of the different kinds of soils. The Bureau may require other chemical and physical analyses, field-site trials, or greenhouse tests, if determined to be necessary or desirable to demonstrate the suitability of topsoil substitutes or supplements. If the removal of vegetative material, topsoil, or other materials may result in erosion which may cause air or water pollution: The size of the area from which topsoil is removed at any one time shall be limited; The surface soil layer shall be redistributed at a time when the physical and chemical properties of topsoil can be protected and erosion can be minimized; and Such other measures shall be taken as the Bureau may approve or require to control erosion. Topsoil Storage. Topsoil and topsoil substitutes removed under §A of this regulation shall be stockpiled only when it is impractical to promptly redistribute these materials on regraded areas. Protection measures shall be accomplished either by: An effective cover of non-noxious, quick-growing annual and perennial plants, seeded, or planted during the first normal period after removal for favorable planting conditions; or Other methods demonstrated to, and approved by, the Bureau to provide equal protection. Unless approved by the Bureau, stockpiled topsoil and other materials may not be moved until required for redistribution on a regraded area. Topsoil Redistribution. After final grading and before the replacement of topsoil and topsoil substitutes, regraded land shall be scarified or otherwise treated as required by the Bureau to eliminate slippage surfaces and to promote root penetration. Topsoil and other materials shall be redistributed in a manner that: Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage system; Prevents excess compaction of the topsoil; and Protects the topsoil from wind and water erosion before and after it is seeded and planted. Nutrients and Soil Amendments. Nutrients and soil amendments shall be applied to the initially redistributed material when necessary to establish the vegetative cover. An undisturbed natural barrier shall be provided beginning at the elevation of the lowest coal seam to be mined, and extending from the outslope for such distance as may be determined by the Bureau as is needed to assure stability. The barrier shall be retained in place to prevent slides and erosion. At any time a slide occurs which may have a potential affect on public property, health, safety, or the environment, the person who conducts the surface mining activities shall notify the Bureau by the fastest available means and comply with any remedial measures required by the Bureau. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.30, .31, and .37, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.25 to COMAR 26.20.25, June 1996 Regulation .02D amended effective May 8, 2006 (33:9 Md. R. 797) Except as provided in Regulation .05 of this chapter, excess spoil shall be placed in designated disposal areas within the permit area in a controlled manner to: Minimize the adverse effects of leachate and surface water runoff from the fill on surface and ground waters; Ensure mass stability and prevent mass movement during and after construction; and Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use. The fill and appurtenant structures shall be designed using current, prudent engineering practices and shall meet any design criteria established by the Bureau. A qualified registered professional engineer experienced in the design of earth and rock fills shall certify the design of the fill and appurtenant structures. All vegetative and organic materials shall be removed from the disposal area and disposed of in an approved manner and location. All topsoil shall be removed and handled in accordance with COMAR 26.20.25.02. Slope protection shall be provided to minimize surface erosion at the site. All disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction. The disposal areas shall be located on the most moderately sloping and naturally stable areas available as approved by the Bureau. If the placement provides additional stability and prevents mass movement, fill materials suitable for disposal shall be placed upon or above a natural terrace, bench, or berm. The spoil shall be hauled or conveyed and placed in horizontal lifts not exceeding 4 feet in thickness in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement during and after construction, covered with topsoil or substitute material, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and ensure a long-term static safety factor of 1.5. The Bureau may approve a design which incorporates placement of excess spoil in horizontal lifts other than 4 feet in thickness when it is demonstrated by the operator and certified by a qualified registered professional engineer that the design will ensure the stability of the fill and will meet all other applicable requirements. The final configuration of the fill shall be suitable for postmining land uses approved in accordance with the permit, except that no depressions or impoundments shall be allowed on the completed fill. Terraces may be constructed on the outslope of the fill if required for stability, control of erosion, to conserve soil moisture, or to facilitate the approved postmining land use. The grade of the outslope between terrace benches may not be steeper than 2:1 (50 percent). If the slope in the disposal area exceeds 2.8:1 keyway cuts (excavations to stable bedrock) or rock toe buttress shall be constructed to stabilize the fill. If the toe of the spoil rests on a downslope, stability analyses shall be performed to determine the size of rock toe buttresses and keyway cuts. Excess spoil that is acid-forming or toxic-forming or combustible shall be adequately covered with nonacid, nontoxic and noncombustible material, or treated to control the impact on surface and ground water in accordance with COMAR 26.20.20, to prevent sustained combustion, and to minimize adverse effects on plant growth and the approved postmining land use. A qualified registered professional engineer, or other qualified professional specialist under the direction of the professional engineer, shall periodically inspect the fill during construction. The professional engineer or specialist shall be experienced in the construction of earth and rock fills. The inspections shall be made at least quarterly throughout construction and during critical construction periods. Critical construction periods shall include at a minimum: Foundation preparation, including the removal of all organic material and topsoil; Placement of underdrains and protective filter systems; Installation of final surface drainage systems; and The final graded and revegetated fill. Regular inspections by the engineer or specialist shall also be conducted during placement and compaction of fill materials. The qualified registered professional engineer shall provide a certified report to the Bureau promptly after each inspection stating that the fill has been constructed and maintained as designed and in accordance with the approved plan and this chapter. The report shall include: Appearances of instability; Structural weakness; and Other hazardous conditions. The certified report on the drainage system and protective filters shall include color photographs taken during and after construction, but before underdrains are covered with excess spoil. If the underdrain system is constructed in phases, each phase shall be certified separately. The photographs accompanying each certified report shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site. A copy of each inspection report shall be retained at or near the mine site. Coal processing wastes may not be disposed of in head-of-hollow or valley fills, and may only be disposed of in other excess spoil fills if the waste is: Placed in accordance with the construction specifications; Demonstrated to be nontoxic and non-acid-forming; and Demonstrated to be consistent with the design stability of the fill. If the disposal area contains springs, natural or man-made water courses, or wet weather seeps, an underdrain system consisting of durable rock shall be constructed from the wet areas in a manner that prevents infiltration of the water into the spoil material. The underdrain system shall be protected by an adequate filter and shall be designed and constructed using standard geotechnical engineering methods. The foundation and abutments of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials shall be performed in order to determine the design requirements for stability of the foundation. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure. Excess spoil may be returned to underground mine workings, but only in accordance with a disposal program approved by the Bureau and MSHA. Valley fills shall meet all of the general requirements for disposal of excess spoil and the additional requirements of this regulation. The fill shall be designed to attain a long-term static safety factor of 1.5 based upon data obtained from subsurface exploration, geotechnical testing, foundation design, and accepted engineering analyses. A subdrainage system for the fill shall be constructed in accordance with the following: A system of underdrains constructed of durable rock shall meet the following requirements: Be installed along the natural drainage system; Extend from the toe to the head of the fill; and Contain lateral drains to each area of potential drainage or seepage. A filter system to insure the proper functioning of the rock underdrain system shall be designed and constructed using standard geotechnical engineering methods. In constructing the underdrains, not more than 10 percent of the rock may be less than 12 inches in size and no single rock may be larger than 25 percent of the width of the drain. The minimum size of the main underdrain shall be: Underdrains shall consist of nondegradable, non-acid-forming or non-toxic-forming rock such as natural sand and gravel, sandstone, limestone, or other durable rock that will not slake in water and will be free of coal, clay, or shale. Spoil shall be hauled or conveyed and placed in a controlled manner and concurrently compacted as specified by the Bureau, in lifts not greater than 4 feet or less if required by the Bureau to: Achieve the densities designed to ensure mass stability; Prevent mass movement; Avoid contamination of the rock underdrain or rock core; and Prevent formation of voids. Surface water runoff from the area above the fill shall be diverted away from the fill and into stabilized diversion channels designed to pass safely the runoff from a 100-year, 24-hour precipitation event. Surface runoff from the fill surface shall be diverted to stabilized channels off the fill which will safely pass the runoff from a 100-year, 24-hour precipitation event. The tops of the fill and any terrace constructed to stabilize the face shall be graded no steeper than 20:1. The vertical distance between terraces may not exceed 50 feet. Drainage may not be directed over the outslope of the fill. The outslope of the fill may not exceed 2:1. Disposal of spoil in a head-of-hollow fill shall meet all standards set forth in Regulations .01 and .02 of this chapter, and the additional requirements of this regulation. The fill shall be designed to completely fill the disposal site to the approximate elevation of the ridgeline. A rock-core chimney drain may be used instead of the subdrain and surface diversion system required for valley fills. If the crest of the fill is not approximately at the same elevation as the low point of the adjacent ridgeline, the fill shall be designed as specified in valley fills, with diversion of runoff around the fill. A fill associated with contour mining and placed at or near the coal seam, and which does not exceed 250,000 cubic yards may use the rock-core chimney drain. The alternative rock-core chimney drain system shall be designed and incorporated into the construction of head-of-hollow fills as follows: The fill shall have, along the vertical projection of the main stream channel or rill, a vertical core of durable rock at least 16 feet thick which shall extend from the toe of the fill to the head of the fill, and from the base of the fill to the surface of the fill. A system of lateral rock underdrains shall connect this rock core to each area of potential drainage or seepage in the disposal area. Rocks used in the rock core and underdrains shall meet the requirements of valley fills. A filter system to ensure the proper functioning of the rock core shall be designed and constructed using standard geotechnical engineering methods. The grading may drain surface water away from the outslope of the fill and toward the rock core. The maximum slope of the top of the fill shall be 33:1. A drainage pocket may be obtained at the head of the fill during and after construction, to intercept surface runoff and discharge the runoff through or over the rock drain, if stability of the fill is not impaired. This pocket or sump may not have a potential for impounding more than 10,000 cubic feet of water. Terraces on the fill shall be graded with a 3 to 5 percent grade toward the fill and 1 percent slope toward the rock core. The drainage control system shall be capable of passing safely the runoff from a 100-year, 24-hour precipitation event. The Bureau may approve alternative methods of disposal of hard rock spoil, including fill placement by dumping in a single lift, on a site specific basis, provided the services of a registered professional engineer experienced in the design and construction of earth and rockfill embankments are used and provided the requirements of this regulation and the general requirements for disposal of excess spoil are met. “Hard rock spoil” means rock fill consisting of at least 80 percent by volume of sandstone, limestone, or other rocks that do not slake in water. Resistance of the hard rock spoil to slaking shall be determined by using the slake index and slake durability tests in accordance with guidelines and criteria established by the Bureau. Special Placement. Spoil is to be transported and placed in a specified and controlled manner which will ensure stability of the fill. The method of spoil placement shall be designed to ensure mass stability and prevent mass movement. Loads of noncemented clay shale, clay spoil, or both, in the fill shall be mixed with hard rock spoil in a controlled manner to limit on a unit basis concentrations of noncemented clay shale and clay in the fill. These materials shall comprise not more than 20 percent of the fill volume as determined by tests performed by a registered professional engineer and approved by the Bureau. Stability Analyses. Stability analyses shall be made by a registered professional engineer. Parameters used in the stability analyses shall be based on adequate field reconnaissance, subsurface investigations, including borings, and laboratory tests. The embankment which constitutes the valley fill or head-of-hollow fill shall be designed with the following factors of safety: Internal Drainage System. The design of a head-of-hollow fill shall include an internal drainage system which will ensure continued free drainage of anticipated seepage from precipitation and from springs or wet weather seeps. Anticipated discharge from springs and seeps and due to precipitation shall be based on records, field investigations, or both, to determine seasonal variation. The design of the internal drainage system shall be based on the maximum anticipated discharge. All granular material used for the drainage system shall be free of clay and consist of durable particles such as natural sands and gravels, sandstone, limestone, or other durable rock which will not slake in water. The internal drain shall be protected by a properly designed filter system. Surface water runoff from the areas adjacent to and above the fill may not be allowed to flow onto the fill and shall be diverted into stabilized channels which are designed to pass safely the runoff from a 100-year, 24-hour precipitation event. The top surface of the completed fill shall be graded so that the final slope after settlement will be no steeper than 20:1 toward properly designed drainage channels in natural ground and the periphery of the fill. Surface runoff from the top surface of fill may not be allowed to flow over the outslope of the fill. Surface runoff from the outslope of the fill shall be diverted off the fill to properly designed channels which will pass safely a 100-year, 24-hour precipitation event. Terraces shall be constructed on the outslope if required for control of erosion or for roads included in the approved postmining land use plan. Terraces shall meet the following requirements: The slope of the outslope between terrace benches may not exceed 2:1. To control surface runoff, each terrace bench shall be graded to a slope of 20:1 toward the embankment. Runoff shall be collected by a ditch along the intersection of each terrace bench and the outslope. Terrace ditches shall have a 5 percent slope toward the channels specified in Regulation .04H of this chapter unless steeper slopes are necessary in conjunction with approved roads. Excess spoil from a permitted coal mining operation may be placed on abandoned mine land outside of the permit area if the Department determines that the: Abandoned mine land is eligible for funding under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland; Abandoned mine land is referenced in the permit application and identified on the permit map; Plan for the placement of the excess spoil on the abandoned mine land meets all applicable design requirements of Maryland's approved program; Legal right to enter upon the abandoned mine land to place excess spoil on the area has been obtained from the surface owner; and Excess spoil will be placed in accordance with the provisions of a contract executed between the Department and the permittee for reclamation of the abandoned mine land. Reclamation Standards. Excess spoil beyond the amount needed to restore the abandoned mine land to its approximate original contour may not be placed on the abandoned mine land. The final configuration of the excess spoil that is placed on the abandoned mine land area outside of the permit area shall be compatible with the natural surroundings and suitable for the intended land use. Valley, head of hollow, or durable rock fills may not be constructed on abandoned mine land. Placement of excess spoil on abandoned mine land shall be planned and implemented in accordance with the requirements of Maryland's approved program. The placement of excess spoil from a permit area on abandoned mine land outside of a permit area may not be approved unless the Department finds, in writing, on the basis of information set forth in the plan or otherwise available, that: Placement of the excess spoil and reclamation of the abandoned mine land can be accomplished in accordance with the plan submitted by the operator; Excess spoil placement operation has been designed to prevent damage to the hydrologic balance outside of the abandoned mine land; Excess spoil placement operation will not adversely affect any publicly owned parks or places included in the National Register of Historic Places, unless approved by the appropriate jurisdictional agency; Applicant has submitted documentation establishing a legal right to enter and conduct the proposed reclamation on the abandoned mine land; and Proposed activities will not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act. The placement of excess spoil from a permitted coal mining operation on abandoned mine land outside of the permit area shall be accomplished in accordance with a contract between the Department and the permittee that contains conditions which: Document the method of placement of the excess spoil and reclamation on the area; Require the operator to permit and bond the abandoned mine land area if the operator defaults on the contract; and Authorize the Department to issue a cessation order to cease all mining operations on the adjacent permit area until the operator submits: An application for a permit, and The required amount of bond for the abandoned mine land area in the event the operator defaults on the contract. The Department shall monitor the placement of excess spoil and the reclamation of the abandoned mine land area to ensure that the work is performed in accordance with the contract. If the operator fails to meet the terms of the contract, the Department shall issue a cessation order to stop work on the area until the failure has been corrected. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.04 were previously codified as COMAR 08.13.09.32A—D, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.26 to COMAR 26.20.26, June 1996 Regulation .01A amended effective January 14, 1999 (26:1 Md. R. 25) Regulation .05 adopted effective January 14, 1999 (26:1 Md. R. 25) All coal mine waste shall be placed in designated disposal areas within a permit area, which are approved by the Bureau for this purpose. Coal mine waste shall be placed in a controlled manner to: Minimize adverse effects of leachate and surface water runoff on surface and ground water quality and quantity; Ensure mass stability and prevent mass movement during and after construction; Ensure that the final disposal facility is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use; Create no public hazard; and Prevent combustion. Coal mine waste materials from activities located outside a permit area, such as those activities at other mines or abandoned mine waste piles, may be disposed of in the permit area only if approved by the Bureau. Approval shall be based on a showing by the permittee, using hydrologic, geotechnical, physical, and chemical analysis, that the disposal will be in accordance with the standards of this chapter. The disposal facility shall be designed using current, prudent engineering practices to attain a minimum long-term static safety factor of 1.5 and to meet any design criteria established by the Bureau. A qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility. The foundation and abutments must be stable under all conditions of construction. Sufficient foundation investigations, as well as any necessary laboratory testing of foundation material, shall be performed in order to determine the design requirements for foundation stability. The analyses of the foundation conditions shall take into consideration the effect of underground mine workings, if any, upon the stability of the disposal facility. A qualified registered professional engineer, or other qualified professional specialist under the direction of the professional engineer, shall inspect the coal mine waste disposal facility during construction. The professional engineer or specialist shall be experienced in the construction of similar earth and waste structures. Inspections shall be made at least quarterly throughout construction and during critical construction periods. Critical construction periods shall include at a minimum: Foundation preparation including the removal of all organic material and topsoil; Placement of underdrains and protective filter systems; Installation of final surface drainage systems; and The final graded and revegetated facility. Regular inspections by the engineer or specialist shall be conducted during placement and compaction of coal mine waste materials. More frequent inspections shall be conducted if a danger of harm exists to the public health and safety or the environment. Inspections shall continue until the waste disposal facility has been finally graded and revegetated or until a later time as required by the Bureau. The qualified registered professional engineer shall provide a certified report to the Bureau within 10 days after each inspection stating that the waste disposal facility has been constructed and maintained as designed and in accordance with the approved plan and this subtitle. The report shall include appearances of instability, structural weakness, and other hazardous conditions. The certified report on the drainage system and protective filters shall include color photographs taken during and after construction, but before underdrains are covered with coal mine waste. If the underdrain system is constructed in phases, each phase shall be certified separately. The photographs accompanying each certified report shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site. A copy of each inspection report shall be retained at or near the mine site. If any inspection discloses that a potential hazard exists, the Bureau shall be informed immediately of the findings and of emergency procedures considered necessary for public protection and remedial action. If adequate procedures cannot be immediately implemented, the Bureau shall notify appropriate emergency agencies of the need for measures to protect the public. If the disposal area contains springs, natural or man-made water courses, or wet weather seeps, the design shall include diversions and underdrains as necessary to control erosion, prevent water infiltration into the disposal facility, and ensure stability. If a subdrainage system is used, it shall: Intercept all ground water sources; Be protected by an adequate filter; Be covered so as to protect against the entrance of surface water or leachate from the coal mine waste; Consist of durable rock or pipe; Be designed and constructed using current, prudent engineering practices and meet design criteria established by the Bureau and the requirements of 30 CFR §77.214 and 77.215; and Be designed to carry the anticipated seepage of water due to rainfall away from the fill and from seeps and springs in the foundation of the disposal area and be protected from piping and contamination by an adequate filter. Rock underdrains shall be constructed of durable, nonacid, non-toxic-forming rock, for example, natural sand and gravel, sandstone, limestone, or other durable rock that does not slake in water or degrade to soil material, and which is free of coal, clay, or other nondurable material. Perforated pipe underdrains shall be corrosion resistant and shall have characteristics consistent with the long-term life of the fill. Uncontrolled surface drainage may not be diverted over the outslope of refuse piles. All surface drainage runoff from the area above refuse piles and runoff from the surface of refuse piles shall be diverted into stabilized diversion channels designed to safely pass the runoff from a 100-year, 6-hour precipitation event. Slope protection shall be provided to minimize surface erosion at the site. All disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction. All water discharged from a refuse pile shall comply with the effluent limitations of the Regulatory Program. Refuse piles shall be constructed in compliance with the requirements of COMAR 26.20.26, except to the extent that the requirements of that chapter are varied in this regulation. Refuse piles shall have a minimum static safety factor of 1.5. Compaction requirements during construction or modification of all coal mine waste disposal facilities are as follows: Waste shall be spread in layers not more than 24 inches in thickness. Waste shall be compacted to attain 90 percent of the maximum dry density to prevent spontaneous combustion and to provide the strength required for stability of the coal processing waste bank. Dry densities shall be determined in accordance with the American Association of State Highway and Transportation Officials (AASHTO) Specification T99-74 (Twelfth Edition) (July, 1978), or an equivalent method. Following final grading of the coal mine waste disposal facility, the site shall be covered with a minimum of 4 feet of the best available nontoxic and noncombustible material in a manner that does not impede flow from subdrainage systems and shall be revegetated. The Bureau may allow less than 4 feet of cover material based on physical and chemical analyses which show that the revegetation requirements will be satisfied. Permanent impoundments may not be allowed on completed refuse piles. The final configuration of refuse piles shall be suitable for the approved postmining land use. Terraces may be constructed on the outslope if required for stability, control of erosion, conservation of soil moisture, or facilitation of the approved postmining land use. The grade of the outslope between terrace benches may not be steeper than 2h:1v (50 percent). Coal mine waste fires shall be extinguished by the person who conducts the surface mining activities, in accordance with a plan approved by the Bureau and the federal Mine Safety and Health Administration (MSHA). The plan shall contain, at a minimum, provisions to ensure that only those persons authorized by the operator and who have an understanding of the procedures to be used shall be involved in the extinguishing operations. Before any burned or burning coal mine waste is removed from a disposal area, approval shall be obtained from the Bureau. A plan for removal, with maps and appropriate drawings to illustrate the proposed sequence of the operation, shall be submitted to the Bureau. Consideration shall be given in the plan to potential hazards to persons working or living in the vicinity of the structure. The plan shall be certified by a qualified engineer. Coal mine waste may be disposed of in underground mine workings only in accordance with a plan approved by the Bureau and MSHA. Non-coal wastes including, but not limited to, grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber, and other combustibles generated during surface mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface runoff do not degrade surface or ground water, fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. Final disposal of non-coal wastes shall be in a designated disposal site in the permit area or a State-approved solid waste disposal area. Disposal sites shall be designed and constructed with appropriate water barriers on the bottom and sides of the site. Wastes shall be routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed, a minimum of 2 feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished. Operation of the disposal site shall be conducted in accordance with all local, State, and federal requirements. Non-coal waste may not be deposited in a refuse pile or impounding structure. An excavation for a non-coal mine waste disposal site may not be located within 8 feet of any coal outcrop or coal storage area. Any non-coal mine waste defined as “hazardous” under §3001 of the Resource Conservation and Recovery Act (PL 94-580) shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations. Coal mine waste may not be used in the construction of impounding structures unless it has been demonstrated that the stability of the structure will be ensured, and that the use of coal mine waste will not have a detrimental effect on downstream water quality or the environment due to acid seepage through the impounding structure. All demonstrations shall be submitted to and approval obtained from the Bureau before construction. Impounding structures constructed of coal mine waste or impounding coal mine waste may not be retained permanently as part of the approved postmining land use. Before coal mine waste is placed at a dam or embankment site: All vegetative and organic materials shall be removed from the site and disposed of in an approved manner and location. All topsoil shall be removed and handled in accordance with COMAR 26.20.25.02. Surface drainage that may cause instability or erosion to the embankment area, or the embankment features, whether during construction or after completion, shall be diverted away from the embankment by diversion ditches. Diversions that are designed to divert drainage from the upstream area or from the surface of the facility shall be designed to carry the peak runoff from a 100-year, 6-hour precipitation event. The diversion shall be maintained to prevent blockage, and sediment control measures shall be provided at the discharge of each diversion ditch before entry into natural watercourses. The design of each dam and embankment constructed of coal mine waste, or intended to impound this waste, shall comply with the permanent and temporary impoundment requirements of the Regulatory Program, modified as follows: The design freeboard between the lowest point on the embankment crest and the maximum water elevation shall be at least 3 feet. The maximum water elevation shall be that determined by the freeboard hydrograph criteria contained in the U.S. Soil Conservation Service criteria referenced in COMAR 26.20.21.08A(5). The dam and embankment shall have a minimum safety factor of 1.5 for the partial pool with steady seepage saturation conditions, and a seismic safety factor of at least 1.5. The dam or embankment foundation and abutments shall be designed to be stable under all conditions of construction and operation of the impoundment. Sufficient foundation investigations and laboratory testing shall be performed to determine the safety factors of the dam or embankment for all loading conditions shown in §A(1) and (2) of this regulation, for all increments of construction. Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets shall be protected against blockage. The combination of principal and emergency spillways shall be able to safely pass the 100-year, 6-hour design precipitation event. Dams or embankments constructed of or impounding waste materials shall be designed so that at least 90 percent of the water stored during the design precipitation event shall be removed within a 10-day period. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.11 were previously codified as COMAR 08.13.09.33A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.27 to COMAR 26.20.27, June 1996 Reclamation efforts, including, but not limited to, backfilling, grading, topsoil replacement and revegetation, of all land that is disturbed by surface mining activities, shall occur as contemporaneously as practicable with mining operations. Unless otherwise approved by the Bureau, upon a demonstration by the permittee, through a detailed written analysis, in the permit application, that a variation is necessary: In contour mining operations, rough backfilling and grading shall follow coal removal by not more than 1500 linear feet; In area surface mining operations, rough backfilling and grading may not be more than three spoil ridges behind the pit being worked, the spoil from the active pit being considered the first ridge; In addition to, and notwithstanding the requirements of, §B(1) and (2) of this regulation, rough backfilling and grading shall begin within a time not to exceed 60 days of completion of all coal removal within a pit, designated area, or phase, and shall be continuous until completion; Within 5 days of completion of all coal removal on the permit area, rough backfilling and grading shall begin on the unreclaimed areas, and shall be continuous until completion, not to exceed 1 year after all coal removal. The number of open acres may not exceed the open acre limit. In order to minimize the amount of area that has not been backfilled and seeded by the close of a planting season, the Bureau may require backfilling, grading, topsoil redistribution, and seeding of open acres at times, rates, and locations that do not impinge upon the areas required for overburden removal, spoil placement, coal removal, approved haul roads, sediment control structures, and processing and shipping areas. Except as specifically exempted in this chapter, all disturbed areas shall be returned to their approximate original contour. All spoil shall be transported, backfilled, compacted (where advisable to ensure stability or to prevent leaching) and graded to eliminate all highwalls, spoil piles, and depressions. Backfilled material shall be placed to minimize erosion and water pollution both on and off the site, to minimize adverse effects on ground water, and to support the approved postmining land use. The postmining graded slopes need not be of uniform slope. Cut-and-fill terraces may be used only in those situations expressly identified in Regulation .03 of this chapter. Postmining final graded slopes need not be uniform but shall approximate the general nature of the pre-mining topography. These requirements may be modified by the Bureau where the surface mining activities are reaffecting previously mined lands that have not been restored to these standards, and sufficient spoil is not available to otherwise comply with this chapter. The permittee shall, at a minimum: Retain all overburden and spoil on the solid portion of existing or new benches; and Backfill and grade to the most moderate slope possible to eliminate the highwall which does not exceed either the angle of repose or such lesser slope as is necessary to achieve a minimum long-term static safety factor of 1.5. In all cases the highwall shall be eliminated. On approval by the Bureau in order to conserve soil moisture, ensure stability, and control erosion on final graded slopes, cut and fill terraces may be allowed. The terraces shall be compatible with the approved postmining land use, and can be appropriate substitutes for construction of lower grades on the reclaimed lands. The terraces shall meet all of the following requirements: The width of the individual terrace bench may not exceed 20 feet, unless specifically approved by the Bureau as necessary for stability, erosion control, or roads included in the approved postmining land use plan. The vertical distance between terraces shall be as specified by the Bureau to prevent excessive erosion and to provide long-term stability. The slope of the terrace outslope may not exceed 2:1. Outslopes which exceed 2:1 may be approved, if they have a minimum static safety factor of 1.5, provide adequate control over erosion, and closely resemble the surface configuration of the land before mining. Highwalls may not be left as part of terraces. Small depressions may be constructed, if they: Are approved by the Bureau to minimize erosion, conserve soil moisture, create and enhance wildlife habitat, or promote vegetation; Do not restrict normal access; and Are approved, in writing, by the landowner. Preparation of final graded surfaces shall be conducted in a manner which minimizes erosion and provides a surface for replacement of topsoil which will minimize slippage. Spoil may be placed on the permit outside the mined-out area in non-steep slope areas to restore the approximate original contour by blending the spoil into the surrounding terrain if the following requirements are met: All vegetative and organic material shall be removed from the area; The topsoil on the area shall be removed, segregated, stored, and redistributed in accordance with COMAR 26.20.25.02; The spoil shall be backfilled and graded on the area in accordance with the requirements of this chapter. Cover. The permittee shall either cover, with a minimum of 4 feet of the best available nontoxic and noncombustible material, or treat all exposed coal seams remaining after mining, and all acid-forming materials, toxic-forming materials, combustible materials, or any other materials identified by the Bureau as exposed, used, or produced during mining. Cover or treatment shall be provided so as to neutralize toxicity, acidity, and combustibility in order to prevent water pollution and sustained combustion, and to minimize adverse effects on plant growth and land uses. Where necessary to protect against upward migration of salts, exposure by erosion, formation of acid or toxic seeps, to provide an adequate depth for plant growth, or otherwise to meet local conditions, the Bureau shall specify thicker amounts of cover using nontoxic materials, or special compaction and isolation from ground water contact. Acid-forming or toxic-forming material may not be buried or stored in proximity to a drainage course so as to cause or pose a threat of water pollution. Drainage from acid-forming and toxic-forming spoil into ground and surface water shall be avoided by: Identifying, burying, and treating, where necessary, spoil which in the judgement of the Bureau may be detrimental to vegetation or may adversely affect water quality if not treated or buried; Preventing water from coming into contact with acid-forming and toxic-forming spoil and other measures as required by the Bureau; and Burying or otherwise treating all acid-forming or toxic-forming spoil within 30 days after it is first exposed on the mine site, or within a lesser period required by the Bureau. Temporary storage of the spoil may be approved by the Bureau upon a finding that burial or treatment within 30 days is not feasible, and that storage will not result in any material risk of water pollution or other environmental damage. Storage approval shall expire as soon as burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water. Stabilization. Backfilled materials shall be selectively hauled or conveyed, and compacted, wherever necessary to prevent leaching of acid-forming and toxic-forming materials into surface or ground waters and wherever necessary to insure stability of the backfilled materials. The method and design specifications of compacting materials shall be approved by the Bureau before acid-forming and toxic-forming materials are covered. Surface mining activities shall be conducted to meet, at a minimum, the following standards: All spoil and wastes not required to achieve the approximate original contour of the mine plan area shall be hauled or conveyed, backfilled, or graded to the lowest practicable grade, to achieve a static factor of safety of 1.3 and cover all acid-forming and other toxic-forming materials; Haul or convey, backfill, and grade excess spoil and wastes only within the permit area and dispose of the materials in accordance with COMAR 26.20.26. Haul or convey, backfill, and grade excess spoil and wastes to maintain the hydrologic balance and to provide long term stability by preventing slides, erosion, and water pollution; Haul or convey, backfill, grade, and revegetate wastes and excess spoil to achieve an ecologically sound land use approved by the Bureau as compatible with the prevailing land uses in unmined areas surrounding the mine plan area; Eliminate all highwalls and depressions by backfilling with spoil and suitable waste materials; and Meet the revegetation requirements for all disturbed areas. When rills or gullies deeper than 9 inches form in areas that have been regraded and top-soiled, the rills and gullies shall be filled, graded, or otherwise stabilized and the area area reseeded or replanted in accordance with the revegetation requirements. The Bureau shall specify that rills or gullies of lesser size be stabilized and the area reseeded or replanted if the rills or gullies are disruptive to the approved postmining land use or may result in additional erosion and sedimentation. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.06 were previously codified as COMAR 08.13.09.34A—F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.28 to COMAR 26.20.28, June 1996 Except for water areas and surface areas of roads that are approved as part of the postmining land use, the permittee shall establish a vegetative cover on regraded areas and on all other disturbed areas to stabilize the soil, minimize damage from sediment and runoff to downstream areas, and establish a permanent vegetative cover compatible with the approved postmining land use, that is in accordance with the approved permit and reclamation plan and that is: Diverse, effective, and permanent; Comprised of species native to the area, or of introduced species when desirable and necessary to achieve the approved postmining land use and approved by the Bureau; At least equal in extent of cover to the natural vegetation of the area; and Capable of quickly stabilizing the soil surface from erosion. The reestablished vegetative cover shall: Be compatible with the approved postmining land use; Have the same seasonal characteristics of growth as the original vegetation; Be capable of self-regeneration and plant succession; Be compatible with the plant and animal species of the area; and Meet the requirements of applicable State and federal seed, poisonous and noxious plant, and introduced species laws and regulations. The Bureau may grant exception to the requirements of §B(2) and (3) of this regulation when the species are necessary to achieve a quick-growing, temporary, stabilizing cover, and measures to establish permanent vegetation are included in the approved permit and reclamation plan. When a cropland postmining land use is approved, the Bureau may grant a waiver to the requirements of §§A(1) and (3) and B(2) and (3) of this regulation. The person who conducts surface mining activities shall perform proper management practices including but not limited to the maintenance of any necessary fences, and periodic measurements of water, vegetation, and soils, as directed by the Bureau, to identify conditions during the period of liability. Seeding and planting of disturbed areas shall be conducted during the first normal period for favorable planting conditions after final regrading and spreading of topsoil. The normal period for favorable planting shall be that planting time generally accepted locally for the type of plant materials selected. When necessary to effectively control erosion, any disturbed area shall be seeded and planted, as contemporaneously as practicable with the completion of backfilling and grading, with a temporary cover of small grains, grasses, or legumes until a permanent cover is established. All planting plans, including trees and shrubs, shall include provisions for a herbaceous cover. The selection of plant species shall be based on proposed postmining land use, elevation, and soil conditions. Establishment of a temporary or permanent herbaceous vegetative cover requires the following treatment: Preparation of a seed bed by discing, harrowing, or other methods, if an adequate seed bed does not exist; Application of lime to obtain a proper pH for the seed mixture to be planted, with minimum rate of 4 tons of lime per acre required, although a liming rate based on a soil analysis may be substituted for the minimum rate; Application of fertilizer to ensure proper nutrients for plant growth, with minimum rate of 400 pounds per acre of 10-20-20 or equivalent required, although a fertilizer rate based on soil analysis may be substituted for the minimum rate; Inoculation of legume seed with proper strain, and triple the inoculation rate if hydroseeded; Protection of seeded area from livestock grazing and harvesting; Fall seeding of legumes to be completed by September 1; and Spring planting of seedlings to be completed before May 1. The guidelines in §§B—I of this regulation shall be used in the development of a revegetation plan for the selected postmining land use. Cropland. The plan shall contain appropriate crops for harvesting. These may include row crops, small grain crops, hay crops, nursery crops, orchard crops, or other similar crops. The crops may be planted alone or in combination with herbaceous cover. However, if nursery or orchard crops are planted, they shall include a herbaceous cover. Pastureland and Hay Land. The plan shall include an appropriate selection of grasses and legumes to support the intended use of the area. Forestry and Forest Land. The plan shall include the planting of a variety of trees and shrubs to support the intended use. A herbaceous cover shall also be provided for the area. Residential and Industrial/Commercial. The plan shall provide for a vegetative cover for all open space areas in the developed area. The cover may be herbaceous or a combination of herbaceous/woody cover. Recreation. The plan shall include the planting of a herbaceous cover and, if necessary, the planting of an appropriate variety of trees and shrubs to develop the area. Fish and Wildlife. The plan shall include a herbaceous cover and the appropriate trees and shrubs necessary to enhance the use of the area, and shall be prepared in consultation with the Forest, Park and Wildlife Service and approved by the Bureau. Developed Water Resources. The plan shall provide for the revegetation of all land not covered by water in accordance with one of the above land use categories. Undeveloped Land. The plan shall provide for the revegetation of the area in accordance with the fish and wildlife or forestry land use categories. Suitable mulch and other soil-stabilizing practices shall be used on all regraded and topsoiled areas to control erosion, promote germination of seeds, or increase the moisture-retention capacity of the soil. The Bureau may modify this if seasonal, soil, or slope factors result in a condition when a lower application rate of mulch is adequate to control erosion and to promptly establish an effective vegetative cover. When required by the Bureau, mulches shall be mechanically or chemically anchored to the soil surface to assure effective protection of the soil and vegetation. Annual grasses and grains may be used alone, as in situ mulch, or in conjunction with another mulch, when the Bureau determines that they will provide adequate soil erosion control and will later be replaced by perennial species approved for the postmining land use. Chemical soil stabilizers, alone or in combination with appropriate mulches, may be used in conjunction with vegetative covers approved for the postmining land use. The minimum rate of application for hay or straw mulch is 2—3 tons per acre. Other mulching materials may be substituted for hay or straw, on written request from the operator, and approval of the Bureau, of the mulch material and the rate of application. A backfilling and planting report shall be prepared by the permittee on forms furnished by the Bureau and filed with the Bureau not later than the time the mining and reclamation progress report required by Environment Article, §15-508(b), Annotated Code of Maryland, is submitted. The report shall include a location map showing the location of the acres backfilled and planted and covered by the report. The permittee shall review all planted areas before the recognized planting seasons. The permittee shall cause those areas deficient of vegetative cover to be regraded, top dressed with lime and fertilizer, seeded, or mulched, or to have any other necessary treatment to establish a satisfactory cover of vegetation. A vegetation inspection shall be made by the Bureau and the Land Reclamation Committee when the planted area has survived 2 years after the last augmented seeding. Following the inspection by the Bureau and the Land Reclamation Committee, the Bureau shall notify the operator whether the standards for success have been achieved. If standards have been met, the Bureau may then reduce the amount of bond on the area in accordance with COMAR 26.20.14. If the standards have not been met, the Bureau may order the operator to correct the deficiencies. A final inspection shall be made by the Bureau on the planted areas at the end of the 5-year responsibility period. The Bureau shall notify the permittee, in writing, of its approval or disapproval of the revegetation. On areas for which the revegetation is: Approved, the notification shall include procedures for bond release; Not approved, the notification shall state the reasons for the disapproval. Success of revegetation shall be judged on the effectiveness of the vegetation for the approved postmining land use, the extent of the cover compared to the cover occurring in natural vegetation of the area, and the general requirements of Regulation .01 of this chapter. Ground cover, production, or stocking of trees and shrubs shall be considered equal to the success standard when they are not less than 90 percent of the success standard using a 90 percent statistical confidence interval. A one-sided test with a 0.10 alpha error is an example of this. Standards for success shall be applied in accordance with the approved postmining land use and, at a minimum, meet the following conditions: For areas developed for use as pastureland or hay land, the ground cover and production of living plants on the revegetated area shall be at least equal to that of the approved reference area, or the revegetated area shall sustain a vegetative ground cover of 90 percent for the last 2 years of the responsibility period, with at least 10 percent of the area consisting of legumes well distributed, and contain no bare areas in excess of 300 square feet; For areas developed for use as cropland, crop production on the revegetated area shall be at least equal to that of a reference area approved by the Bureau, or the crop production on the area shall be at least 90 percent of a production/yield standard recommended by the appropriate soil conservation district for the area and approved by the Bureau as part of the revegetation plan; For areas to be developed for wildlife habitat, recreation, commercial forestry, or forest land, when a combination of herbaceous cover and woody plants is to be used, the success of the vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover, and the following standards of success apply: At the time of bond release the trees and shrubs shall be healthy, and at least 80 percent shall have been in place for at least 3 growing seasons, Trees and shrubs may not be in place for less than 2 growing seasons and shall be counted in determining stocking adequacy, On areas planted to woody species, there shall be at least 400 woody plants per acre on slopes less than 12 degrees, and 600 woody plants per acre on slopes greater than 12 degrees, The herbaceous ground cover may not be less than that required to control erosion, and shall sustain a vegetative ground cover of 70 percent for the last 2 years of the responsibility period, and For areas within the plan which are planted with herbaceous cover only, the success standards of §B(1) of this regulation apply; For areas to be developed for industrial, commercial, or residential use less than 2 years after regrading is complete, the vegetative ground cover may not be less than that required to control erosion; For areas classified as undeveloped land for which no specific postmining land use is specified, the success standards of §B(3) of this regulation apply unless another success standard is developed for §B(3)(b) of this regulation in consultation with the Forest, Park and Wildlife Service and approved by the Bureau; The period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, or other work, excluding normal conservation and management practices approved by the Bureau; Approved practices shall be normal conservation and management practices within the area for unmined lands having land uses similar to the approved postmining land use of the disturbed area; The period of responsibility shall continue for a period of not less than 5 full years, except on lands eligible for remining as provided in §B(9) of this regulation; and On lands eligible for remining included in permits issued before September 30, 2004, or on any later date authorized by the federal Surface Mining Control and Reclamation Act, or any renewal thereof, the period of responsibility shall continue for a period of not less than 2 full years. On lands eligible for remining included in any permit, the lands shall equal or exceed the standards for success during the growing season of the last year of the responsibility period in §B(9) of this regulation. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.07 were previously codified as COMAR 08.13.09.35A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.29 to COMAR 26.20.29, June 1996 Regulation .07 amended effective March 22, 1999 (26:6 Md. R. 488) All affected areas shall be restored in a timely manner to: Conditions that are capable of supporting the uses which they were capable of supporting before any mining; or Equal or better uses achievable under criteria and procedures of this chapter. Pre-Mining Uses. The pre-mining uses of land to which the postmining land use is compared shall be those uses which the land previously supported, if the land had not been previously mined and had been properly managed. The postmining land use for land that has been previously mined and not reclaimed shall be judged on the basis of the best use that can be achieved and which is compatible with surrounding areas. The postmining land use for land that has received improper management shall be judged on the basis of the pre-mining use of surrounding lands. If the pre-mining use of the land was changed within 5 years of the beginning of mining, the comparison of postmining use to pre-mining use shall include a comparison with the historic use of the land as well as its use immediately preceding mining. The permit area shall be restored, in a timely manner, either to conditions capable of supporting the uses they were capable of supporting before any mining, or to conditions capable of supporting approved alternative land uses. Alternative land uses may be approved by the Bureau after consultation with the landowner or the land management agency having jurisdiction over the lands or as submitted in the mining plans, if the following criteria are met: The proposed postmining land use is compatible with adjacent land use and, where applicable, with existing local, State, or federal land use policies and plans. Any required approval, including any necessary zoning or other changes required for land use by local, State, or federal land management agencies, is obtained and remains valid throughout the surface mining activities. Specific plans are prepared and submitted to the Bureau which show the feasibility of the postmining land use as related to projected land use trends and markets and that include a schedule showing how the proposed use will be developed and achieved within a reasonable time after mining and will be sustained. The Bureau may require appropriate demonstrations to show that the planned procedures are feasible, reasonable, and integrated with mining and reclamation, and that the plans will result in successful reclamation. There is a reasonable likelihood that any necessary public facilities will be developed. Specific and feasible plans are submitted to the Bureau which show that financing, attainment, and maintenance of the postmining land use are feasible and reasonably likely to occur. Plans for the postmining land use are designed under the general supervision of a registered professional engineer, or other appropriate professional, who will ensure that the plans conform to applicable accepted standards for adequate land stability, drainage, vegetative cover, and esthetic design appropriate for the postmining use of the site. The proposed use will neither present actual or probable hazard to public health or safety nor pose any actual or probable threat of water flow diminution or pollution. The use will not involve unreasonable delays in reclamation. Necessary approval of measures to prevent or mitigate adverse effects on fish, wildlife, and related environmental values and threatened or endangered plants is obtained from the Bureau. Appropriate State and federal fish and wildlife management agencies have been provided a 60-day period in which to review the plan before surface mining activities begin. Proposals to change pre-mining land uses of fish and wildlife habitat, forest land, hay land, or pasture to a postmining cropland use, where the cropland would require continuous maintenance such as seeding, plowing, cultivation, fertilization, or other similar practices to be practicable or to comply with applicable federal, State, and local laws, are reviewed by the Bureau to ensure that: There is sufficient water available and committed to maintain crop production; and Topsoil quality and depth are sufficient to support the proposed use. Grazing and Harvesting. When grazing or harvesting is not the approved postmining land use, but the landowner desires to engage in these activities, a written request and plan must be submitted to the Bureau. The Bureau may approve the request, in consultation with the local soil conservation district, if the permittee agrees, and the Bureau determines that no adverse impact to revegetation success is likely to occur. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulation .01 was previously codified as COMAR 08.13.09.36. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.30 to COMAR 26.20.30, June 1996 Failure to comply with the requirements of the Regulatory Program, or any condition of a permit or prospecting approval, may result in both civil and criminal penalties pursuant to Environment Article, §§15-520 and 15-521, Annotated Code of Maryland. Further, an operator may be enjoined by the circuit court in the county where the operation is located to enforce compliance with the Regulatory Program, permit, or prospecting approval. In those cases when an operator persistently or repeatedly fails to comply with the Regulatory Program, permit, or prospecting approval, a permit or approval may be revoked by the Bureau, and all bonds forfeited. In general, sanctions will be imposed upon the person licensed to operate under Environment Article, §15-504, Annotated Code of Maryland, to whom the applicable permit has been issued which is in violation. However, any officer, director, employee, contractor, or agent of a corporation who willfully and knowingly participates in a violation under the Regulatory Program, permit, or prospecting approval may be subject to all penalty provisions. Any actions to be performed by the Bureau may, unless otherwise noted, be performed by any authorized employee of the Bureau. The Bureau may require the operator to establish and maintain any records reasonably required to show that the operation is being conducted in compliance with these regulations and all permit conditions. The Bureau shall conduct an average of one partial inspection per month of each active surface mining and reclamation operation, and shall conduct as many partial inspections of each inactive surface mining and reclamation operation as necessary to ensure effective enforcement of the Regulatory Program. A partial inspection is an on-site or aerial review for compliance with some of the permit conditions and requirements of the Regulatory Program. The Bureau shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface mining and reclamation operation. A complete inspection is an on-site review for compliance with all permit conditions and requirements of the Regulatory Program. Prospecting operations shall be periodically inspected for compliance with all conditions and requirements of the Regulatory Program and the prospecting approval. Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions of each surface mining and reclamation operation inspected. A potential violation observed during an aerial inspection shall be investigated on-site within 3 days, except that any indication of a condition, practice, or violation constituting cause for issuance of a cessation order shall be investigated on-site within 1 day. The on-site investigation of a potential violation observed during an aerial inspection is not considered to be an additional partial or complete inspection. Inspections shall be carried out on an irregular basis and without prior notice. Within 2 weeks of the completion of each inspection, a written report shall be filed at the Bureau containing any findings made, and whether any notice of violation or cessation order was issued as a result of the inspection. For the purposes of this regulation, an inactive surface mining and reclamation operation is one for which: The Bureau has received from the permittee the written notice provided for under COMAR 26.20.05.03F; or Reclamation Phase II as defined in COMAR 26.20.14.08F(2) has been completed. A surface coal mining and reclamation operation is an abandoned site if the Bureau finds in writing that: All surface and underground coal mining and reclamation activities at the site have ceased; At least one notice of violation has been issued, and the notice: Could not be served in accordance with Regulation .08 of this chapter; or Was served and has progressed to a failure-to-abate cessation order; Action is being taken to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will not receive future permits while the violations continue at the site; Action is being taken in accordance with the requirements of the Regulatory Program to ensure that abatement occurs or that the failure-to-abate will not recur, except if after evaluating the circumstances it is concluded that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and Where the site is, or was, permitted and bonded, the permit has either expired or been revoked, and the Bureau has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance bond. Instead of the inspection frequency required in §§A and B of this regulation, the Bureau shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site. However, the inspection frequency may not be less than one complete inspection per calendar year. The Bureau shall conduct a complete inspection of the abandoned site and provide the public notice required under §K of this regulation in order to select an alternative inspection frequency under §I of this regulation. Following the inspection and public notice, the Bureau shall prepare and maintain for public review a written finding that justifies the selected alternative inspection frequency. The written finding shall justify the new inspection frequency by addressing in detail all of the following criteria: How the site meets each of the criteria under the definition of abandoned site under §H of this regulation and thereby qualifies for a reduction in inspection frequency; Whether, and to what extent, there exists on the site impoundments, earthen structures, or other conditions that pose, or may reasonably be expected to become, imminent dangers to the health and safety of the public or significant environmental harms to land, air, or water resources; The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit; The degree to which erosion and sediment control is present and functioning; The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools, and other public or commercial buildings and facilities; The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and Based on a review of the complete and partial inspection report record for the site during at least the last 2 consecutive years, the rate at which adverse environmental or public health and safety conditions are expected to progressively deteriorate. Public Notice. The Bureau shall place a notice in the newspaper with the broadest circulation in the area of the abandoned site providing the public with a 30-day period to submit written comments concerning the alternative inspection frequency. The public notice shall contain the: Permittee's name and permit number; Precise location of the land affected; Inspection frequency proposed; General reasons for reducing the inspection frequency; Bond status of the permit; Telephone number and address of the Bureau where written comments may be submitted; and Closing date of the comment period. The Bureau may enter on and inspect any strip mining and reclamation operation or prospecting operation to determine compliance with the requirements of the Regulatory Program, or condition of a permit or prospecting approval. The entry and inspection may occur at reasonable times and upon presentation of appropriate credentials. A search warrant is not required, except when entry into a building is a necessary aspect of the inspection. The Bureau shall be permitted access to any records related to any activities conducted pursuant to the Regulatory Program, permit or prospecting approval, and shall have the right to inspect and copy these records. Unless expressly noted in this regulation, all information related to the enforcement of the Regulatory Program and conditions of permits and prospecting approvals shall be open to inspection by the general public for at least 5 years after expiration of the period during which a surface mining and reclamation operation is active or is covered by any portion of a performance bond required by COMAR 26.20.14. Records shall be accessible at the office of the Bureau during normal working hours. The Bureau shall have the right to refuse access when not requested at least 24 hours in advance, provided that, at the time of refusal, a substitute appointment is arranged for the immediate future. Records may not be removed from the office of the Bureau. Copying shall be permitted at fees to be determined by the Bureau. Any person may request that the Bureau inspect any strip mining and reclamation operation or prospecting operation by furnishing a signed written statement which shows reason to believe that a violation of the Regulatory Program, permit condition, or prospecting approval is occurring. The statement shall contain the phone number and address where the person can be reached during normal business hours. If the Bureau determines that the information supplied provides reason to believe that a violation is occurring, the Bureau shall conduct an inspection. Before conducting the inspection, the Bureau shall notify the complainant of the complainant's right to be present during the inspection. Any person who accompanies an inspector under this regulation shall agree, in writing, to at all times remain in the presence of the inspector and under his control, direction, and supervision while on the permit site. Regardless of whether the person accompanies the inspector, he or she shall be provided, within 10 days of the inspection, a written description of the enforcement action taken (which may include copies of the inspection report and any notices or orders issued). Likewise, if the Bureau determines not to inspect the permit area, the person shall be provided, within 15 days of receipt of his statement under §A of this regulation, a written explanation of the reason no inspection was conducted. The Bureau shall also inform the person of the person's right to review of the Bureau's action or inaction in regard to the complaint filed. Copies of all material shall be provided to the person alleged to be in violation of the Regulatory Program, permit condition, or prospecting approval, except that the name of the requestor shall be kept confidential if this protection was obtained under §D of this regulation and has been maintained. If requested in the original signed statement required in §A of this regulation, and if the person elects not to accompany the inspector under §B of this regulation, the identity of the person supplying information to the Bureau shall be kept confidential to the extent permitted under Maryland law. If, as the result of an inspection requested under §A of this regulation, the Bureau issues a notice or order to the operator, the requestor shall be permitted to participate in any enforcement proceedings or appeals in the same manner as if the requestor were a person “adversely affected” by the violation. A person who is or may be adversely affected by a surface mining and reclamation operation or prospecting operation may notify the Director, in writing, of any alleged failure on the part of the Bureau to make adequate and complete or periodic inspections of the operation. The notification shall include sufficient information to create a reasonable belief that regulations pertaining to inspections are not being complied with, and to demonstrate that the person is or may be adversely affected. The Director shall determine within 15 days of receipt of the notification whether adequate and complete or periodic inspections have been made. The Director shall notify the complainant, in writing, of the reasons for the determination and the actions, if any, taken to remedy the noncompliance. In those instances where an authorized representative of the Director of the Bureau decides not to inspect an operation or fails to issue a notice or order as a result of an inspection requested under §A of this regulation, the requestor may seek informal review by the Director. The request for review shall be in writing, include a statement of how the person is or may be adversely affected by the alleged violation, and state why the decision merits review. The Director shall conduct a review and inform the person of the Director's decision in writing within 30 days of receipt of the request. The operator shall also be sent a copy of the Director's decision, except that the name of the requestor shall be kept confidential if this protection was initially obtained under §D of this regulation and has been maintained. Any person adversely affected by the Director's decision may obtain an adjudicatory hearing under COMAR 26.20.34, and shall bear the burden of proof as to existence of the alleged violation at the permit site. The Bureau shall issue a notice of violation, whenever an operation is found to be in violation of the Regulatory Program or any condition of a permit or a prospecting approval, and the violation is not of a nature to require the issuance of a cessation order. A notice of violation shall be in writing, signed by the authorized representative who issues it, and shall set forth: The nature of the violation; A description of its location on the surface coal mining and reclamation or prospecting operation; and An order stating the remedial measures to be accomplished and establishing a reasonable time for abatement, which may include a time for accomplishment of interim steps. The Bureau may extend the time set for abatement or for the accomplishment of an interim step. The total time for abatement, including all extensions, may not exceed 90 days from the date of issuance, except upon request and a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in §D of this regulation. An extended abatement time may not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial measures. Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are when: The permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit renewal, or other necessary approval of designs or plans, but the permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee; There is a valid judicial order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which there is no other effective legal remedy; The permittee cannot abate within 90 days due to a labor strike; Climatic conditions preclude abatement within 90 days, or if, due to climatic conditions, abatement within 90 days would clearly cause more environmental harm than it would prevent; or Abatement within 90 days requires action that would violate established mine safety standards under Maryland law or the Mine Safety and Health Act of 1977, or regulations under those statutes. Whenever an abatement time in excess of 90 days is granted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment. Extension. If any of the conditions in §D of this regulation exists, the permittee may request the Bureau to grant an abatement period exceeding 90 days. The Bureau may not grant an extension to the abatement period without the approval of the Director, and the abatement period granted may not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing clear and convincing proof, in writing, that he is entitled to an extension under §D of this regulation. The Director shall document the reasons for granting or denying the request. The Director's written decision shall contain the right to appeal in accordance with this chapter. An extension granted under § F of this regulation may not exceed 90 days in length. If the condition or circumstance still exists at the expiration of any extension, the permittee may request a further extension in accordance with this chapter. The Bureau may modify or vacate a notice of violation for good cause. The Bureau shall terminate a notice of violation, in writing, when it determines that all violations listed in the notice of violation have been abated. Termination does not affect the right of the Bureau to assess a civil penalty for the violations. The Bureau shall issue a cessation order whenever it is determined that an operation is not in compliance with the requirements of the Regulatory Program, the permit, or the prospecting approval, and that the noncompliance: Involves mining operations being conducted without a permit or license, outside of a permit area, or in excess of an established open acre limit; Creates an imminent danger to the health or safety of the public; or Is causing or can reasonably be expected to cause significant, imminent environmental harm. The Bureau shall issue a cessation order whenever an operator has failed to meet the time set for abatement or for the accomplishment of an interim step specified in a notice of violation. The Bureau may issue a cessation order whenever it is determined that an operation is in violation of the Regulatory Program, the permit, or other prospecting approval, and that the violation involves discharges to the waters of the State in violation of applicable effluent limitations, or when continued operation in the area of the violation would contribute to an additional or more serious violation. The Bureau may also issue a cessation order for repeated violations of the Regulatory Program or permit condition in conjunction with issuance of a show cause order leading to possible revocation of the permit under COMAR 26.20.33. A cessation order shall be in writing, signed by the authorized representative who issues it, and shall set forth: The nature of the violation; A description of its location on the prospecting or surface coal mining and reclamation operation; An order stating the remedial measures to be accomplished and establishing a time for abatement, which may include a time for accomplishment of any interim steps; and A description of the portion of the operation to which the cessation order applies. Upon issuance of a cessation order, the operator shall immediately cease and desist all prospecting or strip mining operations within the entire area or the portion specified in the order, and shall devote full attention to abatement of the violation or violations and achieving compliance with the order as expeditiously as possible, provided that reclamation and water treatment operations shall continue during the period of the cessation order. If full compliance with a cessation order will not completely abate an imminent danger or harm in the most expeditious manner physically possible, the Bureau shall impose affirmative obligations on the operator to abate the violation, including use of existing or additional personnel or equipment. A cessation order shall remain in effect until the violation has been abated and until the order has been vacated, modified, or terminated in writing by the Bureau. The Bureau may modify, terminate, or vacate a cessation order for good cause, and may extend the time for abatement when the operator is diligently attempting to comply. The Bureau shall terminate a cessation order in writing when it determines that all violations listed in the order have been abated and that the operation is in compliance with the Regulatory Program, and conditions of the permit or prospecting approval. Termination of the order does not affect the right of the Bureau to assess a civil penalty for the violation or violations. Within 60 days after issuance of a cessation order under §§A(2) and (3) and B of this regulation, the Bureau shall notify in writing any person who has been identified under COMAR 26.20.05.03I and 26.20.02.03D and E as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller. In most instances, notices of violation and cessation orders will be issued by a Bureau inspector immediately upon discovery of conditions warranting the action. The inspector will first attempt to serve the operator at the site of the violation. If the operator is not available, the inspector may serve any individual at the site who appears to be an employee or agent of the permit holder or operator. In all cases, service shall be complete upon tender of a notice or order, and is not deemed incomplete because of refusal to accept delivery. Service may also be effected by mailing a copy of the notice or order in writing, and by certified mail, to the last address the permittee has filed with the Bureau. Service on a person conducting an unpermitted operation may also be effected by certified mail. Service in this manner is complete upon mailing, and not considered incomplete because of refusal to accept delivery. Within 10 days of issuance of any notice of violation or cessation order, an operator may request an enforcement conference at the mine site or the Bureau to review the grounds of the notice or order. The conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The conference shall be held within 30 days of receipt of request. The purpose of an enforcement conference is to determine whether any question exists regarding the violation cited by the Bureau as underlying the notice or order. The operator should be prepared to discuss the situation at the mine site, and present any evidence indicating that the Bureau should exercise its authority to modify, terminate, or vacate the notice or order. If a notice or order requires cessation of mining, the Bureau shall hold an enforcement conference within 30 days of the issuance of the notice or order. However, the conference need not be held if waived by the operator or if the violation is abated within this time. If a notice or order requires cessation of mining, the Bureau shall notify the operator, in writing, that an enforcement conference will be held within 30 days of the service of the notice or order. The notice shall: Be delivered to the operator at the time the notice or order is served, or sent by certified mail to the operator not later than 5 days after the notice or order is served; Inform the operator that the enforcement conference shall be considered to have been waived unless the Bureau is notified that the operator will attend the conference within 30 days after the service of the notice or order; and Inform the operator that an extension of time for holding the conference shall be considered to have been consented to if the notification under §D(2) of this regulation is received by the Bureau on or after 21 days after the service of the notice or order. The extension of time consented to under §D(3) of this regulation shall equal the number of days elapsed after 21 days after service of the notice or order. The Bureau shall give as much advance notice as is practicable of the time, place, and subject matter of the enforcement conference to the operator and any person who filed a report which led to the notice or order being reviewed. The Bureau shall post notice of the enforcement conference at the office of the Bureau, and publish it, when practicable, in a newspaper of general circulation in the area of the mine. The Bureau shall notify the operator and any person who filed a report which led to the notice or order, in writing, of its decision to affirm, modify, or vacate the notice or order within 5 days from the conclusion of any enforcement conference. The granting or waiver of an enforcement conference does not affect the right of any person to formal review in accordance with this chapter. The person conducting the conference shall determine whether the mine site should be viewed during the conference. In making this determination, the only consideration is whether a view of the mine site will assist in reviewing the appropriateness of the enforcement action or of the required remedial action. Within 30 days of issuance of any notice of violation or cessation order, or within 10 days from receipt of the Bureau's decision after an enforcement conference, whichever is later, an operator may request a hearing by the Department to review the notice or order. Formal review may also be requested by any person having an interest which is or may be adversely affected by a notice of violation or cessation order, or by any modification, vacation, or termination of any notice or order, provided that the request shall be submitted within 30 days of the action. All requests shall be submitted to the Bureau, in writing and signed by the requestor, and shall contain: The full name and address of the person requesting the hearing and a telephone number where he can be reached during normal business hours; The name, address, and telephone number of any attorney representing the requestor, or a statement that he intends to represent himself; A detailed description of the grounds for the request, including the interests of the requestor which are or may be adversely affected by the decision of the Bureau; A statement of the specific relief desired; A general outline of the evidence to be presented in support of the desired relief at the hearing, including the names and addresses of all witnesses expected to be called by the requestor. Formal review hearings shall be conducted in accordance with COMAR 26.20.34. The Bureau shall have the burden of proof as to the validity of the notice or order, or modification, termination, or vacation of it. The filing of a hearing request does not operate as a stay of any notice or order, or other action for which review is requested. The requestor for a hearing may file with the hearing officer a written request that the hearing officer grant temporary relief from any notice or order, together with a detailed statement of the reasons for granting the relief. The hearing officer shall issue a decision granting or denying the temporary relief as expeditiously as possible. The hearing officer may grant temporary relief, under those conditions considered appropriate, pending final determination of the proceeding, if: All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief; The person requesting temporary relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; The relief will not adversely affect the public health or safety, or cause significant imminent environmental harm to land, air, or water resources; and The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Bureau. Inability to comply with a notice or order is not grounds for vacation or termination. Any person, including the Secretary of the United States Department of Interior, may petition for leave to intervene at any stage of an administrative proceeding under this subtitle. A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and a showing of why the petitioner's interest is or may be adversely affected. Intervention shall be granted if the petitioner: Had a statutory right to initiate the proceeding in which the petitioner wishes to intervene; or Has an interest which is or may be adversely affected by the outcome of the proceeding. If neither §C(1) nor (2) of this regulation applies, the following shall be considered in determining whether intervention is appropriate: The nature of the issues; The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding; The ability of the petitioner to present relevant evidence and argument; and The effect of intervention on the Department's implementation of its statutory mandate. Any person granted leave to intervene in a proceeding may participate in this proceeding as a full party or, if desired, in a capacity less than that of a full party. If the intervenor wishes to participate in a limited capacity, the extent and terms of the participation shall be in the discretion of the Department. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.11 were previously codified as COMAR 08.13.09.40A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.31 to COMAR 26.20.31, June 1996 Regulation .02 amended effective July 8, 2002 (29:13 Md. R. 993) The Bureau may assess civil penalties upon the issuance of any notice of violation or cessation order, regardless of a person's subsequent efforts to comply with the requirements of the Regulatory Program. Civil penalties may be as much as $5,000 for each violation of the Regulatory Program. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. Civil penalties shall be assessed whenever the Bureau issues a cessation order for a violation that creates an imminent danger to the health and safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm. If a person fails to correct a violation within the time specified in either a notice of violation or cessation order, the Bureau shall assess a civil penalty of not less than $750 for each day up to 30 days beyond the compliance deadline during which the violation continues, and may assess this penalty beyond that time for continued noncompliance. However, in all cases the daily penalty may not begin until the Bureau conducts a reinspection of the permit and informs the person that compliance has not been achieved. Whenever the $750 per day penalty of §D of this regulation is not assessed beyond 30 days, the Bureau shall take appropriate action pursuant to the Regulatory Program, within 30 days, to ensure that abatement occurs or to ensure that there will not be a recurrence of the failure to abate. A civil penalty may not be assessed without providing an opportunity for a hearing. If the person charged with the violation fails to request a hearing, the Bureau shall assess a civil penalty only after determining, in writing, that a violation did occur. If the requirements of a notice of violation or cessation order are expected to be satisfied within 30 days of issuance, the Bureau will await the conclusion of the matter before instituting civil penalty procedures. If satisfactory compliance has not been achieved by that time the Bureau, in its discretion, may wait a further period, or assess a penalty for the first 30 days only, reserving the ability to impose further assessments until compliance is achieved. Civil penalty assessments shall be initiated by sending a Notice of Proposed Assessment, in writing and by certified mail, to the operator. The notice shall contain: A description of the violation for which the penalty is being assessed, including reference to any related notice of violation or cessation order; The amount of penalty proposed to be assessed; The time period covered by the assessment; A statement of the appeal procedures under this chapter; and A work sheet showing the computation of the proposed assessment. Service of the Notice of Proposed Assessment is complete upon mailing in accordance with COMAR 26.20.31.08. Failure by the Bureau to serve any proposed assessment within 30 days of the issuance of a notice of violation or cessation order is not grounds for dismissal of all or part of the assessment unless the person against whom the proposed penalty has been assessed: Proves actual prejudice as a result of the delay; and Makes a timely objection to the delay. An objection under §D(2) of this regulation is timely only if made in the normal course of administrative review. Within 30 days of the date a Notice of Proposed Assessment is served, the person against whom the penalty has been assessed may request an assessment conference at the Bureau regarding the amount of penalty. An assessment conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The purpose of the conference is to discuss the amount of penalty only. The assessment conference shall be held within 60 days from the date of issuance of the Notice of Proposed Assessment, or the end of the abatement period, whichever is later. Failure by the Bureau to hold the conference within this time period is not grounds for dismissal of all or part of the proposed assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay. The Bureau shall post notice at the Bureau of the date and time of the assessment conference at least 5 days before the conference. Any person has the right to attend and participate in the conference. An assessment conference may result in an increase or decrease in the amount of penalty. If possible, a settlement agreement can be entered at the conference, under which the operator shall waive all further rights of appeal except as stated in the agreement. If an operator fails to make full payment of any settlement amount within 30 days after the date of signing, the Bureau may enforce the agreement, or rescind it and proceed with final assessment within 30 days from the date of rescission. Within 30 days of the conclusion of an assessment conference, or, in the absence of a request for a conference, within 30 days after the violation is abated, the Bureau shall send a Notice of Final Assessment in writing and by certified mail. The notice shall contain the: Basis for the Bureau's determination that a violation has occurred; Amount of penalty assessed, or as stipulated in a settlement agreement and a work sheet if the penalty is raised or lowered. Service of the Notice of Final Assessment is complete upon mailing in accordance with COMAR 26.20.31.08. The person against whom the final penalty has been assessed may request formal review of the final assessment by submitting a petition and an amount equal to the final assessment to the Bureau within 30 days from receipt of the Notice of Final Assessment. The formal review hearing shall be conducted in accordance with COMAR 26.20.34. If the person has requested formal review of the underlying violation under COMAR 26.20.31.09, and the fact of the violation has not been adjudicated, formal review of the final assessment may be combined with formal review of the violation. The fact of the violation may not be contested if the person has not requested a hearing to review the notice of violation or cessation order in accordance with COMAR 26.20.31.09, or if the fact of the violation has been decided in a review proceeding under COMAR 26.20.31. At the conclusion of an adjudicatory hearing on an assessment, the hearing officer may increase or decrease the amount set by the Bureau's Notice of Final Assessment. In determining the amount of penalty to be assessed for a violation of the Regulatory Program, the Bureau shall compute a separate figure from each of the following categories: History of previous violations at the same permit site; Seriousness of the violation; Negligence or willfulness of the violation; Effect of the violation; and Good faith in attempting to achieve compliance. In determining the amount of the penalty to be assessed under §A(1) of this regulation, the Bureau shall consider violations regardless of whether they resulted in civil penalty assessments. Cessation orders shall constitute a more serious history than notices of violation. A violation may not be considered if it was subsequently vacated or is still being contested or appealed. The maximum amount to be assessed for this category is $2,000. In determining the amount of the penalty to be assessed under §A(2) of this regulation, the Bureau shall consider the probability of occurrence of the violation and the extent of actual or potential damage to the environment or general public health and safety. If the violation relates to an administrative requirement, such as record keeping, seriousness shall be judged on the extent to which the violation obstructs enforcement under the Regulatory Program. The maximum amount to be assessed for this category is $1,000. In determining the amount of the penalty to be assessed under §A(3) of this regulation, the Bureau shall evaluate the degree of fault of the person contributing to a violation, such as whether the exercise of reasonable care would have avoided the violation, or whether the person acted intentionally or with reckless disregard of the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $1,500. In determining the amount of the penalty to be assessed under §A(4) of this regulation, the Bureau shall evaluate the effect of the violation on the probability for eventual success of reclamation on the permit site in accordance with the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $500. The Bureau shall reduce the amount of the civil penalty under §A(5) of this regulation if the person contributing to a violation takes extraordinary measures to correct a violation in the shortest possible time and achieves compliance before the deadline set in the notice of violation or cessation order. The maximum reduction of the civil penalty for this category is $1,000. The Bureau shall identify, in a Notice of Proposed Assessment, the amount calculated for each of the categories in §A of this regulation. In all cases, civil penalty assessments shall be paid within 30 days of receipt of a Notice of Final Assessment. Failure to forward the full amount within this time shall result in a loss of any right to contest or otherwise appeal the penalty amount, or the violation on which the assessment is based. The Bureau shall place all penalty payments in escrow pending expiration of appeal deadlines or final resolution of any challenge to the violation or penalty amount. If the final decision upon appeal results in elimination or reduction of a penalty, the Bureau shall refund the amount within 30 days, with interest from the date of payment into escrow to the date of refund at the rate of 6 percent. If the final decision upon appeal results in an increase in a penalty, the person shall forward the full amount to the Bureau within 15 days of the decision. Definitions. For the purpose of this regulation, the following terms have the meanings indicated: “Knowingly” means that an individual knew or had reason to know in authorizing, ordering, or carrying out an act or omission on the part of a corporate permittee that the act or omission constituted a violation, failure, or refusal; “Violation, failure, or refusal” means a: Violation of a condition of a permit issued pursuant to the Regulatory Program, or Failure or refusal to comply with any order issued under the Regulatory Program or any order incorporated in a final decision issued by the Department, except an order to pay a civil penalty issued in accordance with this chapter or in accordance with Environment Article, §15-521, Annotated Code of Maryland; “Willfully” means that an individual acted either intentionally, voluntarily, or consciously, and with intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation, failure, or refusal. Except as provided in §C of this regulation, the Department may assess an individual civil penalty against any corporate director, officer, or agent of a corporate permittee who knowingly and willfully authorized, ordered, or carried out a violation, failure, or refusal. The Department may not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the Department to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days. In determining the amount of an individual civil penalty assessed under this regulation, the Department shall consider the following criteria: The individual's history of authorizing, ordering, or carrying out previous violations, failures, or refusals at the particular surface coal mining site; The seriousness of the violation, failure, or refusal, as indicated by the extent of the damage and the cost of reclamation, including any irreparable harm to the environment and any hazard to the health and safety of the public; and The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure, or refusal. The penalty may not exceed $5,000 for each violation. Each day of a continuing violation may be considered a separate violation and the Department may assess a separate individual civil penalty for each day the violation, failure, or refusal continues, from the date of service of the underlying notice of violation, cessation order, or other order incorporated in a final decision issued by the Department, until abatement or compliance is achieved. The Department shall serve on each individual to be assessed an individual civil penalty, a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order. The notice of proposed individual civil penalty assessment shall become a final order of the Department 30 days after service upon the individual, unless the: Individual files a petition for review with the Department within 30 days of service of the notice of individual civil penalty assessment; or Department and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure, or refusal. Service of the notice of proposed individual civil penalty assessment is complete upon mailing in accordance with COMAR 26.20.31.08. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty is due upon issuance of the final order. If an individual named in the notice of proposed individual civil penalty assessment files a petition for review with the Department, the penalty is due upon issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty. When the Department and the corporate permittee or individual have agreed in writing on a plan for compliance with the unabated order, an individual named in the notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Department stating that the penalty is due on the date of the final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty is subject to interest at the rate of 6 percent per annum. Interest on unpaid penalties runs from the date payment first was due until the date of payment. The civil penalty is payable to the State and is collectable in any manner provided at law for the collection of debts. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.07 were previously codified as COMAR 08.13.09.41A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.32 to COMAR 26.20.32, June 1996 Any permit issued under the Regulatory Program may be revoked upon a determination by the Bureau that a permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months. If the Director determines that a permittee has persistently or repeatedly failed to comply with any requirements of the Regulatory Program, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue an order which requires the permittee to show cause why the permit should not be revoked and the bonds forfeited, and shall give the permittee 30 days in which to request an adjudicatory hearing. Violations by a person conducting surface coal mining and reclamation operations on behalf of the permittee shall be attributed to the permittee unless the permittee proves that they were acts of deliberate sabotage. The Director may determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, on two or more occasions within a 12-month period, a permittee has failed to meet the requirements of a: Notice of violation within the time limit set forth in the NOVO; Cessation order within the time limit set forth in the order. In making a determination under §A of this regulation, the Director may consider mitigating circumstances, including the severity of departure of a violation from the requirements of the Regulatory Program. The Director shall determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, within a 12-month period, a permittee has failed to meet the requirements of a cessation order issued under COMAR 26.20.31.07B within 30 days from the date the cessation order was issued. The Director may review the history of violations of a permittee who, within a 12-month period, has been issued on: Two or more occasions violation of the same or related requirements of the Regulatory Program; Three or more occasions for violations of different requirements of the Regulatory Program. The Director shall review the history of violations of a permittee who, within a 12-month period, has been issued on three or more occasions: Violations for the same or related requirements of the Regulatory Program; Cessation orders under COMAR 26.20.31.07B, regardless of whether the permittee abated the violation within 30 days. After the review in §§A and B of this regulation, the Director shall determine whether a permittee has repeatedly failed to comply with the requirements of the Regulatory Program. If, after a review of the history of any permit, the Director determines that a persistent or repeated failure to comply under Regulation .02 or .03 of this chapter exists or has existed, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue a show cause order as required by Regulation .01B of this chapter. The Director may decline to issue a show cause order if he finds that, taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue the order. The basis for this finding shall be documented, in writing, and may include a determination that the violations were not the result of willful or unwarranted failure to comply on the part of the permittee. A show cause order issued by the Director shall be in writing and sent by certified mail to the permittee. The order shall contain a: Detailed description of the basis for the Bureau's determination that the permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months; Statement that the permittee has 30 days from receipt of the order to request an adjudicatory hearing; Statement that unless the permittee requests an adjudicatory hearing to show cause why the permit should not be revoked and the bonds forfeited, the Bureau will immediately, upon expiration of the 30-day period, revoke the permit and forfeit the bonds covering the permit area; Statement that the permittee may be represented by an attorney; Statement that permit revocation and bond forfeiture will result in denial of future Maryland operator licenses to anyone involved in the failure to comply with the Regulatory Program. If the permittee requests a hearing, the Bureau shall give 30 days written notice of the date, time, and place of the hearing to the permittee and all interested parties. If practicable, the Bureau shall publish notice of the hearing in a newspaper of general circulation in the area of the permit and shall post the notice at the Bureau's office. Show cause hearings to revoke a permit and forfeit the bonds shall be held in accordance with COMAR 26.20.34. The Bureau shall have the burden of going forward to establish a prima facie case for revocation of a permit and forfeiture of the bonds. The ultimate burden of persuasion that a permit should not be revoked and the bonds should not be forfeited shall rest with the permittee. The show cause order shall be made part of the hearing record, provided that the Bureau makes available a witness, subject to cross-examination on the reasons contained in the order for initiating revocation and bond forfeiture proceedings. The existence of a show cause proceeding does not relieve the permittee from the permittee's responsibilities under the permit and the Regulatory Program. Failure to abate any continuing violation, or to manage the site properly, may subject the permittee to civil penalties and will be a significant factor in any decision to seek further prosecution. If, at any time before a final decision in a permit revocation and bond forfeiture proceeding, the permittee demonstrates that the permittee is making good faith efforts to bring the operation into compliance and submits a schedule acceptable to the Bureau for bringing the operation into complete compliance, the parties may request the hearing officer to order the temporary suspension of the permit, instead of revocation and forfeiture. Suspension of a permit shall be accepted by the permittee in a written agreement in which the permittee stipulates to: The facts and circumstances which led to the show cause order; The present conditions at the permit site; A specific reclamation or compliance schedule; The submission of periodic reports, or other conditions required by the Bureau, to ensure the operation is brought into compliance; The payment of any civil penalties assessed against the permittee within 30 days of the execution of the agreement; and The immediate revocation of the permit and forfeiture of the bonds by the Director, without further adjudication, if the permittee fails to comply with the schedule. Suspensions may be lifted by the Director, in writing, based upon a finding that the operation has been returned to compliance with all requirements of the Regulatory Program. Lifting of suspension will result in reactivation of the permit. If the permittee fails to comply with any reclamation or compliance schedule set forth in a stipulation agreement, the Director shall immediately notify the permittee, in writing, and by certified mail, that the permit is revoked and the bonds or other collateral covering the permit are forfeited. If the right of appeal is not exercised within the appeal deadline, or if the final decision upon appeal is to revoke the permit and forfeit the bond, the Director shall, in writing, and by certified mail, notify the former permittee and the surety, if applicable, that all bonds are forfeited and shall make claim for payment. The notice and claim shall advise that payment may be avoided if the former permittee or another person with a financial interest in the permit begins reclamation activities and continuously reclaims the site in accordance with a compliance schedule which meets the conditions of the Regulatory Program. Completion of reclamation work by a third party, instead of forfeiture, does not entitle that party to receipt of any collateral held by the Bureau. In all instances, the Bureau shall return collateral to the former permit holder in the same manner as if the permit had not been revoked, and may not become involved in private arrangements between the former permit holder and a third party. In all cases, the total bond amount or other collateral held on a permit shall be forfeited, regardless of the actual amount of reclamation work required at the site. The Director shall pay all forfeited bond funds into the Bituminous Coal Open-Pit Mining Reclamation Fund. Show cause orders and any notices required by this chapter shall be served on the permittee at the address shown on the permit, or on the operator's license. Service shall be made by sending a copy of the order or notice by certified mail. Service shall be complete upon mailing and may not be deemed incomplete because of refusal to accept. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.07 were previously codified as COMAR 08.13.09.42A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.33 to COMAR 26.20.33, June 1996 Whenever the right to request an adjudicatory hearing is provided by the Regulatory Program, the conduct of any resulting adjudicatory hearing is governed by this chapter, any specific requirements contained in the chapter authorizing an adjudicatory hearing, and the Maryland Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. The Director shall review a request for an adjudicatory hearing and shall consider the following criteria in reaching a decision to grant or deny an adjudicatory hearing: Whether the request was timely made; Whether the request contains all the required information; Whether the request raises issues within the scope of the statutory authority of the Bureau; Whether the issues presented in the request are relevant and material; and Whether the request demonstrates that the requestor has a right, duty, interest, statutory entitlement, or privilege which is or may be adversely affected. If the request for an adjudicatory hearing contains insufficient information for the Director to reach a decision, the Director shall notify the requestor, in writing and by certified mail, of the information that shall be submitted. The Director's notification shall require the requestor to submit the information, in writing, within 10 days of the receipt of the notification by the requestor. The Director shall notify the requestor, in writing and by certified mail, of a decision to grant or deny an adjudicatory hearing. If the Director denies the request for an adjudicatory hearing, the notice required by this regulation shall inform the requestor that for any hearing request filed after December 28, 1989, the requestor has the right to request a review of the denial by filing a motion for reconsideration with the Director of the Water Management Administration within 10 days of receipt of the notice. The notice shall also inform the requestor that, if no motion for reconsideration is filed within 10 days, the denial is the Department's final decision as to the adjudicatory hearing request. If a motion for reconsideration is filed, the motion shall be accompanied by a written statement of the grounds in support of the motion, and if oral argument is requested, a written statement to that effect. Within 10 days of receipt of a motion for reconsideration, the Bureau may file a written response with the Director of the Water Management Administration. After considering the motion and supporting statement and the Bureau's response, if any, the Director of the Water Management Administration or the Director's designee may hear oral argument, and shall issue a written final decision. If the final decision of the Director of the Water Management Administration, or the Director's designee, is adverse to a party other than the Bureau, the party may obtain judicial review of the decision in accordance with the provisions of the Maryland Administrative Procedure Act and the Maryland Rules of Procedure. If the Director grants the request for an adjudicatory hearing, the Director shall forward the request to the Secretary or the Secretary's designee. The Secretary or the Secretary's designee shall act as the hearing officer. The hearing officer shall give notice to all parties of the date, time, and place of the hearing. The applicant or permittee shall be made a party to any adjudicatory hearing involving a permit application or permit under the Regulatory Program. The Bureau shall in all cases be made a party to any adjudicatory hearing under the Regulatory Program. Any person may be granted intervention as a party upon a showing, before the beginning of the hearing, that they would have been entitled to request a hearing in their own right, and that existing parties cannot be expected to adequately represent their interests. Before the date of the adjudicatory hearing, the hearing officer may hold a prehearing conference, for which he shall give notice to all parties of the date, time, and place. At a prehearing conference or within some reasonable time set by the hearing officer, each party shall make available to the other parties the names of experts and other witnesses the party expects to call, together with a brief written summary of their anticipated testimony. At a prehearing conference, or within some reasonable time set by the hearing officer, the following matters shall be considered: The documents within the administrative file shall be identified; Stipulations and admissions of facts and the genuineness of documents and other matters upon which there is agreement shall be identified; Matters of which official notice shall be taken shall be identified; Disputed issues of a purely legal nature shall be identified; When possible, consideration shall be given and decisions made upon objections to the introduction into evidence at the hearing of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by a party; A schedule of presentation order for the following shall be established: Submission of written statements; Presentation of oral statements; Presentation of oral direct and cross-examinations; Presentation of oral arguments. The hearing officer shall prepare a written prehearing order reciting the actions taken at the prehearing conference. An adjudicatory hearing shall be conducted generally in the following order, unless modified by the hearing officer during the prehearing conference: Call of the case by the hearing officer; Opening statements by the parties; Presentation of evidence in the following order: Unless otherwise directed by the specific regulation providing a right to a hearing, the party requesting the hearing has the burden of proof on all material issues, has the burden of going forward to present an affirmative case upon the issues, and has the ultimate burden of persuasion; Other parties; Rebuttals in the same order; Closing statements of the parties in the same order of opening statements. The hearing officer shall have the authority and duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of the proceedings, and to maintain order, including, but not limited to the following: To administer oaths; To issue summonses for witnesses and subpoenas requiring the production of documents; To rule upon offers of proof and receive relevant and material evidence; To consider and rule upon all procedural and other motions appropriate to the proceedings; To examine witnesses; To maintain order, limit unduly repetitious testimony, and limit the time for presentations; To identify and rule upon issues of law provided that, in making the rulings, the hearing officer shall be bound by the: Department's regulations; Constitution; Laws of the United States; and Laws of Maryland; To grant a continuance for good cause shown; To require parties to submit proposed findings of fact and conclusions of law; and To provide an opportunity for any party to file a brief containing legal argument and citations in support of the party's position on issues of law identified in the proceedings. Parties shall have the right to cross-examine a witness who appears at an adjudicatory hearing to the extent that cross-examination is necessary for full and true disclosure of the facts. The provisions of the Administrative Procedure Act shall apply to the adjudicatory hearing. In multiparty proceedings, the hearing officer may limit cross-examination to one party on each side if he is satisfied that the cross-examination by the party will adequately protect the other parties. Other parties may engage in cross-examination relevant to matters not adequately covered by previous cross-examination. Rulings of the hearing officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters shall be final and shall appear in the record. Evidence may not be excluded on the grounds that it was generated, discovered, or became available after the action which is the subject of the hearing. The hearing officer shall notify all parties by certified mail as soon as the hearing record is compiled and available. Within 15 days from the date of the notification in §A of this regulation, any party may file proposed findings of fact, conclusions of law, and a brief in support thereof with the hearing officer. Copies shall be mailed to all other parties at the same time. Within 60 days from the notification in §A of this regulation, the hearing officer shall prepare a proposed decision with findings of fact and conclusions of law. The proposed decision shall be submitted to the Director of the Water Management Administration and copies shall be mailed to all parties. Within 15 days of receipt of the proposed decision of the hearing officer, any party adversely affected may file written exceptions and request oral argument before the Director of the Water Management Administration, unless the Director of the Water Management Administration has personally heard the evidence at the adjudicatory hearing. If exceptions and a request to present oral argument are filed, the Director of the Water Management Administration shall notify the parties of the date, time, and place for the argument. The oral argument shall be heard within 15 days from receipt of the exceptions and request to present oral argument. The Director of the Water Management Administration shall render a final decision within 30 days of receipt of the proposed decision of the hearing officer, or from the receipt of written exceptions, or date of oral argument, whichever is later. If the final decision is adverse to a party to the hearing other than the Bureau, the party is entitled to judicial review in accordance with State Government Article, §10-222, Annotated Code of Maryland. The time limits in this regulation may be adjusted as required to meet specific statutory deadlines, or to ensure full presentation of all relevant evidence, provided, however, that a decision on a request to review a cessation order issued for a violation which creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources, or for failure to abate a violation within the time limits set in the order pursuant to Environment Article, §15-508(f), Annotated Code of Maryland, shall be rendered by the hearing officer within 30 days of receipt of the application for review, unless temporary relief is granted by the hearing officer. Adjudicatory hearings shall be either stenographically reported verbatim or tape recorded, and then may be transcribed. Stenographic notes or tapes, or originals of the transcript, shall be filed with the record along with all exhibits. Any party who desires a copy of a transcript of the hearing may request a copy from the hearing officer and pay the costs. If the transcript is prepared by a private stenographer, the hearing officer may direct interested persons to make arrangements for copies by dealing directly with the reporter. All orders issued by the hearing officer, stenographic notes or tapes, or transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information, and other written matter submitted in the adjudicatory hearing, shall be a part of the administrative record of the adjudicatory hearing, and shall be available to the public in the office of the Bureau upon compilation. The Director of the Water Management Administration shall notify the parties to the hearing, in writing and by certified mail, of the final decision. The notice shall include a: Copy of the decision, including findings of fact and conclusions of law in accordance with the Maryland Administrative Procedure Act; and Statement regarding the parties' right of appeal. Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any adjudicatory hearing under this subtitle. The petition for an award of costs and expenses including attorneys' fees shall be filed with the Secretary within 45 days of receipt of a final decision under Regulation .08 of this chapter. Failure to make a timely filing of a petition may constitute a waiver of the right to this award. The petition shall include the name of the person from whom costs and expenses are sought, and the following shall be submitted in support of the petition: An affidavit setting forth in detail all costs and expenses, including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding; Receipts or other evidence of these costs and expenses; and If attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for these services in the area, and the experience, reputation, and ability of the individual or individuals performing the service. Any person served with a copy of a petition shall have 30 days from service of the petition within which to file an answer to this petition. Appropriate costs and expenses including attorneys' fees may be awarded as follows: To any person from the permittee, if: The person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Secretary determines that the person made a substantial contribution to the full and fair determination of the issues, or The person initiates an application for review of alleged discriminatory acts, upon a finding of discriminatory discharge or other acts of discrimination; To any person, other than a permittee or his representative, from the Bureau, if the person initiates or participates in any proceeding under this subtitle, upon a finding that the person made a substantial contribution to a full and fair determination of the issues; To a permittee from the Bureau when the permittee demonstrates that the Bureau issued an order of cessation, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith for the purpose of harassing or embarrassing the permittee; To a permittee from any person when the permittee demonstrates that the person initiated a proceeding under this subtitle or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; To the Bureau when it demonstrates that any person applied for review under this subtitle or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the Government. An award under this chapter may include: All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under this subtitle; All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award. Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under this chapter is entitled to judicial review in accordance with State Government Article, §10-222. Annotated Code of Maryland. The Secretary or the Director of the Water Management Administration may delegate all or part of his authority to act pursuant to this chapter. The failure of the Bureau to do any act within the time periods specified in this chapter may not be construed as a waiver or a derogation of any rights, powers, or authority of the Department or of the Bureau. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.04, .05, and .06—.10 were previously codified as COMAR 08.13.09.43A—D, E—J, and K—O, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.34 to COMAR 26.20.34, June 1996 Regulation .06G amended effective December 27, 1999 (26:26 Md. R. 1961) Regulation .09G amended effective December 27, 1999 (26:26 Md. R. 1961) Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or upon written interrogatories; Written interrogatories; Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; and Requests for admission. Following the initiation of a proceeding, the parties may initiate discovery at any time as long as it does not interfere with the conduct of the hearing. Unless otherwise limited by order of the hearing officer, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. A party may obtain discovery of documents and tangible things otherwise discoverable under §A of this regulation and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the hearing officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the hearing officer may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: The discovery may not be had; The discovery may be had only on specific terms and conditions, including a designation of the time or place; The discovery may be had only by a method of discovery other than that selected by the party seeking discovery; Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters; Discovery be conducted with no one present except persons designated by the hearing officer; or A trade secret or other confidential research, development, or commercial information may not be disclosed or be disclosed only in a designated way. Unless the hearing officer, upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, may not operate to delay any other party's discovery. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: A party is under duty to supplement timely his response with respect to any question directly addressed to: The identity and location of persons having knowledge of discoverable matters, and The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony; A party is under a duty to amend timely a prior response if he later obtains information upon the basis of which: He knows the response was incorrect when made; or He knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment; A duty to supplement responses may be imposed by order of the hearing officer or agreement of the parties. If a deponent fails to answer a question propounded, or a party upon whom a request is made pursuant to Regulation .11 of this chapter, or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part of it, or fails to permit inspection as requested, the discovering party may move the hearing officer for an order compelling a response or inspection in accordance with the request. The motion shall set forth the following: The nature of the questions or request; The response or objection of the party upon whom the request was served; and Arguments in support of the motion. For purposes of this regulation, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond. In ruling on a motion made pursuant to this regulation, the hearing officer may make such protective order as he is authorized to make on a motion made pursuant to Regulation .03D of this chapter. If a party or an officer, director, or other agent of a party fails to obey an order to provide or permit discovery, the hearing officer may make such orders in regard to the failure as are just, including but not limited to the following: An order that the matters sought to be discovered or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence; or An order striking out pleadings or parts of them, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. Any party desiring to take the testimony of any other party or other person by deposition upon oral examinations or written questions shall, without leave of the hearing officer, give reasonable notice in writing to every other party, to the person to be examined, and to the hearing officer, of the following: The proposed time and place of taking the deposition; The name and address of each person to be examined, if known, or, if the name is not known, a general description sufficient to identify him or the particular group or class to which he belongs; The matter upon which each person will be examined; and The name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. The actual taking of the deposition shall proceed as follows: The deposition shall be on the record; The officer before whom the deposition is to be taken shall put the witness on oath or affirmation; Examination and cross-examination shall proceed as at a hearing; All objections made at the time of the examination shall be noted by the officer upon the deposition; The officer may not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections. When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature are waived by the deponent. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign. If the deposition is to be taken upon written questions, the party taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within 30 days after service, any other party may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, as in the case of a deposition on oral examination. A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts. A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party at whose instance the deposition is taken. The deponent may be accompanied, represented, and advised by legal counsel. At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice of it. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party, may be used by an adverse party for any purpose. The deposition of a witness, whether or not a party, may be used by a party for any purpose, if the hearing officer finds that: The witness is dead; The witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or Exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used. Any party may serve upon any other party written interrogatories to be answered in writing by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish this information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the hearing officer and upon all parties to the proceeding. Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated instead of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shorter or longer period as the hearing officer may allow. Interrogatories may relate to any matters which can be inquired into under Regulation .03 of this chapter. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the hearing officer may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time. Any party may serve on any other party a request to: Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things within the scope of Regulation .03 of this chapter and which are in the possession, custody, or control of the party upon whom the request is served; or Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property (including the air, water, and soil) or any designated object or operation on it, within the scope of Regulation .03 of this chapter. The request may be served on any party without leave of the hearing officer. The request shall: Set forth the items to be inspected either by individual item or by category; Describe each item or category with reasonable particularity; and Specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve on the party submitting the request a written response within 30 days after service of the request. The response shall state, with respect to each item or category: That inspection and related activities will be permitted as requested; or That objection is made in whole or in part, in which case the reasons for objection shall be stated. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact. Each matter of which an admission is requested is admitted unless, within 30 days after service of the request or such shorter or longer time as the hearing officer may allow, the party to whom the request is directed serves on the requesting party: A sworn statement denying specifically the relevant matters of which an admission is requested; A sworn statement setting forth in detail the reasons why he can neither truthfully admit nor deny them; or Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the hearing officer determines that an objection is justified, he shall order that an answer be served. If the hearing officer determines that an answer does not comply with the requirements of this regulation, he may order either that the matter is admitted or that an amended answer be served. The hearing officer may, in place of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time before hearing. Any matter admitted under this section is conclusively established unless the hearing officer on motion permits withdrawal or amendment of the admission. Any admission made by a party under this section is for the purpose of pending action only and is not an admission by him for any other purpose and may not be used against him in any other proceeding. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.12 were previously codified as COMAR 08.13.09.44A—L, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.35 to COMAR 26.20.35, June 1996